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Copyright Protection of Unpublished Works in the Common Law World

ISBN13: 9781509916962
Published: March 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00

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This timely piece of scholarship looks at copyright protection of unpublished works such as letters, diaries, manuscripts, photographs, memoranda, sketches, private journals, government records, and drafts intended for future publication. Although the book's primary focus is the treatment of unpublished works in Britain, it also relies extensively on materials from Australia, Canada and the USA, as well as on examples from two civilian systems, Germany and France, thus providing dualistic and monistic perspectives on moral rights protection.

Under contemporary British copyright law, such works are protected by the Copyright, Designs and Patents Act 1988. In addition, the Berne Convention also anticipates that unpublished works shall receive protection. While unpublished works are, in general, assimilated to the treatment of published works, there are notable differences in the strength of protection afforded to published and unpublished works. In fact, contemporary British copyright law confers stronger and longer protection on unpublished works.

The unpublished status of a work assumes considerable significance in the framework for determining: qualification for copyright protection, the extent of copyright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 The book considers whether protection of unpublished works is justified. The issue requires an understanding of copyright in unpublished works from historical, comparative and normative perspectives.

The book contributes to the understanding of why cumulative protection of unpublished works emerged and exceptions to rights in unpublished works evolved. Moreover, the historical analysis deployed in the book may aid the task of applying the law to “new circumstances”.

Intellectual Property Law
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
The Rights of Authors of Unpublished Manuscripts Prior to the Enactment of the Statute of Anne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
3. The Abrogation of Common Law Protection of Unpublished Works and its Consequences
Domestic Pressures for Reform
Further Issues
International Pressures for Reform
Abrogation and its Consequences
4. The Significance of 'Publication' in Contemporary Copyright Law
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
5. Justifications for Protection of Unpublished Works
Expressive Autonomy
6. Persistent Problems
Copyright Exceptions
Fair Use
Purposive Interpretation
The Term of Copyright in Old Unpublished Works
7. Taking Stock