Copyright Protection of Unpublished Works in the Common Law World

Description

This book discusses copyright protection of unpublished works including letters, diaries, manuscripts, photographs, memoranda, sketches, private journals, government records and drafts intended for future publication. Under contemporary British copyright law, unpublished works are protected by the Copyright, Designs and Patents Act 1988. In addition, the Berne Convention anticipates that unpublished works shall receive protection. While unpublished works are, in general, assimilated to the treatment of published ones, notable differences in the strength of protection afforded to published and unpublished works remain. It is the case that contemporary British copyright law confers stronger and longer protection on unpublished works. For instance, the unpublished status of a work assumes pivotal significance in the framework for determining: qualification for copyright protection, the extent of copyright protection, exceptions to copyright infringement and the remedies for copyright infringement. The principal aim of the book is to consider whether copyright in unpublished works is justified; a task which is prosecuted from historical, normative and legal perspectives. Although the book’s primary focus is the treatment of unpublished works in Britain, it also relies extensively on materials from other Common Law jurisdictions. The book contributes to the understanding of why cumulative protection of unpublished works emerged, and how exceptions to rights in unpublished works evolved. Moreover, the analysis deployed in the book aids the task of applying the law to ‘new circumstances’. Acknowledgements Contents Table of Cases Table of Statutes 1. Introduction The Meaning of 'Publication' A Working Definition of Publication Argument and Structure 2. A History of the Jurisdictional Bases for Restraining Unauthorised First Publication Introduction The Rights of Authors of Unpublished Manuscripts Prior to the Enactment of the Statute of Anne The Evolution of 'Property' as a Ground for Restraining Unauthorised First Publication 'Breach of Confidence' and 'Breach of Implied Contract' as Additional Jurisdictional Grounds for Restraining Unauthorised First Publication of Manuscripts Common Law Rights in Unpublished Manuscripts The Emergence of Breach of Confidence as an Alternative Basis for Preventing Unauthorised First Publication The Emergence of Implied Contract as a Further Basis for Protecting Unpublished Works Prince Albert v Strange and the recognition of the Trio of Jurisdictional Bases for Restraining Unauthorised First Publication Further Developments Conclusion 3. The Abrogation of Common Law Protection of Unpublished Works and its Consequences Introduction Domestic Pressures for Reform Further Issues International Pressures for Reform Abrogation and its Consequences 4. The Significance of 'Publication' in Contemporary Copyright Law Introduction Qualification for Copyright Protection The Extent of Copyright Protection The Term of Copyright Protection The Availability and Strength of Copyright Exceptions The Remedies for Copyright Infringement Conclusion 5. Justifications for Protection of Unpublished Works Introduction Incentives Labour Desert Personality Expressive Autonomy Privacy Conclusion 6. Persistent Problems Introduction Copyright Exceptions Fair Use Purposive Interpretation The Term of Copyright in Old Unpublished Works 7. Taking Stock Bibliography Index