1st January 2020 marks the end of copyright term for artistic works i.e. photographs, of authors who passed away in 1949 i.e. 70 years from the end of the calendar year in which the author dies. Conversely under current legislation, 01 January 2090, will mark the end of copyright for authors who have passed away in 2019. At which point, the author’s works will be deemed to have passed into the ‘public domain’.
What is the ‘public domain’. It is not a physical terrain or a cloud store of aggregated works. It can be defined as: 1) works out of copyright for which no permission is required to use or commercially exploit; 2) works which do not qualify for protection e.g. ideas, facts, folklore, etc; and 3) works permitted for open use under a creative commons or general public licence. The works are free for the public to use and exploit without requiring permission to do so.
However, one lesser known right equivalent to copyright, a ‘publication right’, resides in unpublished works out of copyright. The publication right is automatically vested in any person or entity who after the expiry of the copyright term, publishes a previously unpublished ‘public domain’ work for the first time i.e. artistic works in which the copyright has lapsed.
The publication right lasts for 25 years from the end of the year in which the work was first published and cannot be extended. The qualifying criteria is the work must be first published in the EU/EEA and the publisher must be a national/entity of an EU/EEA country. No account is taken of any unauthorised act or publication before the work enters the public domain.
In the case of an artistic work, ‘publication’ means the issue of copies to the public and also making it available to the public by means of an electronic retrieval system. Hence the act of making available online or communicating to the public a previously unpublished artistic work in which the copyright has lapsed will grant the publisher a ‘publication right’ for a further 25 years from the date of publication.
COPYRIGHT DESIGNS AND PATENTS ACT 1988 – Sections 12 & 175.
Directive 2006/116/EC – Article 4
Copyright and the Value of the Public Domain’ – IPO Jan 2015.