Publication Right: The New Right
On December 1 1996 a new intellectual property law was passed in the UK which will give galleries, museums, public and private collectors and exhibitors a new economic power over artworks in their possession: Publication Right.
What is Publication Right?
It is similar to copyright in that it gives the owner of the Right the exclusive authority to charge fees or royalties to anyone who exposes the protected works to public viewing.
Where does this new Right come from?
The Right derives from a European Union Directive which each of the 15 member states were required to comply with by enacting laws giving the Publication Right within their own legal systems. The UK Parliament responded by enacting a statutory instrument: The Copyright and Related Rights Regulations 1996 (S.I. 1996 No.2967), which came into effect on December 1 1996.
How is the new Right acquired?
The Right is acquired automatically, just like copyright. There is no requirement for registration or other claim to the Right. When acquired, it extends not only throughout the UK, but also to the 14 other EU member states.
What work does the new Right apply to?
The Right applies to works made in five different media: visual (or ‘artistic’ as the law dubs them); literary; dramatic; musical and film. In relation to visual works, these include: sculpture; architecture; computer-generated visual works; collages and works of ‘artistic craftsmanship’, meaning 3-Dimensional visual works whose shape, form and configuration are not wholly or largely dictated by their function – for example, ceramics, jewellery, mixed media assemblages, constructions or installations (whereas car parts or other industrial parts and equipment whose shape, form and configuration and wholly or largely dictated by their function, are excluded).
Are there any qualifications to acquire the new Right?
There are two conditions that must exist before the Right is automatically acquired. First, the work must be no longer protected by copyright law. Second, the work must also be unpublished. In relation to the first condition, the general rule is that copyright in visual works lasts for the lifetime of the artist and for 70 years after death. (Note: there are some exceptions, not dealt with in this piece). In relation to the second condition, ‘unpublished’ effectively means that the work must never have been exposed to public viewing in the EU (this is further expanded below).
Who owns the new Right?
The Right is automatically given to the person or body who publishes the work for the first time in the EU, after copyright has expired. ‘Publication’ is given after a specific meaning, and includes any communication to the public by:
- issuing copies of the work to the public
- making the work available via an electronic retrieval system
- renting or lending copies of the work to the public
- exhibiting or showing the work in public
- performing the work in public
- televising the work via broadcast, cable or satellite.
However, any of the above methods which do not have the consent of the owner of the physical work in question do not count for the purposes of ‘publication’. Note: such consent is not required to be given in writing, which raises important issues for owners of such works, as well as would-be ‘publishers’: see below.
The meaning of ‘publication’ in this context is the same one used to decide whether a work is ‘unpublished’ for the purposes of determining whether a work qualifies for the new Right: see Are there any qualifications/or the new Right? above.
How long does Publication Right last?
The Right lasts for 25 years from the end of the calendar year in which a qualifying work is published, and then ceases; unless the law is amended in the future to extend the length of the new Right (as recently happened with copyright, extended from 50 to 70 years in 1996).
What acts breach the new Right?
It is a breach of the new Right for anyone within the European Union to make a 2- or 3-Dimensional version of a work protected by Publication Right without the consent of the owner of the Right. Again, issues arise for owners of the Right, as well as for users of protected works, since consents do not have to be given in writing: see below.
The Right is also infringed by the unauthorised publishing or distribution of copies of protected works; by their being televised or by their being imported into or exported from the EU.
What are the remedies for breach of the new Right?
The remedies are the same as for breach of copyright: an injunction to restrain further or anticipated breaches; compensation for economic loss; an order for the infringer’s profits, infringing articles or making equipment, to be given to the owner of the Right; plus the legal costs of the owner of the above.
There are also criminal remedies available in most cases; the owner of the Right can choose either to sue or to prosecute in the criminal courts. The maximum criminal penalty for any one breach is three months imprisonment or a £5,000 fine, or both plus compensation for economic loss, delivery of the infringer’s equipment and profits to the owner of the Right, and legal costs incurred in bringing the criminal case.
Acts which can be done without the consent of the owner of the Right
For the purposes of research or private study, criticism or review, works protected by the new Right can be reproduced or distributed to the public without the consent of the owner of the Right; as long as such activity is ‘fair’ in the sense that it does not excessively abuse the protected work, or otherwise commercially exploit it under the disguise of research, and so on. A further exception applies to works of sculpture or of ‘artistic craftsmanship’ (as defined earlier), if they are permanently situated in a public place or in premises open to the public. Such works within those exception can freely be reproduced and distributed without the consent of the owner of the Right.
Examples of the new Right
- In 1997 a public gallery exhibits from its own collection a painting by William Holman Hunt (1827-1910), which has never before been exhibited or otherwise seen in public in the EU. Copyright on the painting will have ceased to exist. The gallery will therefore acquire the Publication Right when it exhibits the painting; until December 31 2032.
- The same gallery allows a BBC television crew into its archives to film the same Holman Hunt painting (before it is exhibited) and broadcasts the image before the opening of the show at the gallery. The BBC acquires Publication Right in the painting, not the gallery until December 31 2032. The BBC could also therefore prevent the gallery from exhibiting the work for 25 years!
- The same situation as above, but let us say the painting has been lent to the gallery for the purposes of the exhibition by a private collector who owns the painting. In scenario 1 above, the gallery would acquire Publication Right; and in scenario 2, the BBC would acquire it if the private collector had given consent for the broadcast, but not if consent had not been given.
Some issues involved and arising
In relation to scenario 1 above, all owners of unpublished works whose copyright has expired would be well advised to consider exhibiting them in public in order to acquire the Publication Right; and, if they did so, to create documentation of any such exposition in order to prove that they had fulfilled the publication requirement.
As for scenario 2 above, any owner such as the gallery in question would be well advised carefully to negotiate with the BBC a contractual agreement which included clarification that the BBC would not acquire
Publication Right, but this would be taken by the gallery instead, when the work was transmitted.
Alternatively, the gallery could consider showing the work at least once to the public (with documentation) before filming.
The third scenario above, likewise should cause the private collector to consider exposing the work to public viewing at least once before filming or exhibiting, with relevant documentation; or to ensure that documentation with the gallery recorded an agreement that Publication Right would be the collector’s when the work was shown to the public.
© Henry Lydiate 1997