Copyright ACT amendments to unveil our hidden history

On 1 January 2019 amendments to the Copyright Act 1968 (‘the Act’) took effect. The amendments cover a range of issues, including a new definition of a person with a disability, consolidating the copyright exceptions libraries and archives are privy to and, more significantly, abolishing the previous unlimited copyright term for unpublished works (i.e. works that had not been made public). While mention of the Act may cause people to gloss over, these amendments are far more than purely academic: it essentially allows us to discover a previously veiled cove of original works. Previously unpublished work satisfying the criteria will now enter the public domain, allowing us all to discover hidden parts of our history and connect with those that came before us.

Before these amendments, the Act really only set limitation periods on copyright ownership for works which had been “made public” (for example, written works published, performances or broadcasts in public). In effect, copyright in works which had not been “made public” (unpublished materials) could potentially exist indefinitely.

The copyright term is not identical for all works, but generally where there is a known author the duration of copyright is contingent upon their life (and lasts around 70 years).

So what is the position on copyright duration now?

• If the author is generally known (or becomes generally known) for any work, be it published or unpublished, copyright subsists for 70 years after their death.

For works first made public before 1 January 2019[1]:

• If the author is unknown copyright continues for 70 years after the calendar year in which the work was first made public; and
• If the author is generally known, but died before the work was made public, copyright will subsist until 70 years after the calendar year in which work first made public.

For works that have either never been made public or have first been made public after 1 January 2019[2]:

• If the author remains unknown and the work has not made public for at least 50 years since its creation, the copyright endures for 70 years after the creation;
• If the author remains unknown and the work is made public within 50 years of its creation, the copyright continues for 70 years from the date it was first made public.

So why is copyright important?

The basic premise of copyright is to protect an person’s intellectual property, by granting them exclusive rights to reproduction of the material including the right to sell or licence their works, allowing the public to view or reproduce these works while protecting their own financial and creative interests. Copyright therefore ensures works can be made public, and the interests of the copyright owner protected.

While the scope of these amendments touches upon published works, it is the changes to unpublished works that will create the most excitement. All of us, but particularly authors and educational institutions, should be aware of these new regulations, as it means that previously held material will now, and in the near future, be more readily accessible.

If you have any questions about your copyright, please get in touch with our Business & Commercial team.

Written by Katie Innes with the assistance of Sarah Graham-Higgs.

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[1] Section 33(2) of the Act.

[2] Section 33(3) of the Act.

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