Ian
I think you are entitled to be unaware of the details of copyright
legislation, which is not always clear.
I was talking about the drafting of wills for the future, since the question
was about how to help potential donors ensure that their material came to an
archive. The past is different. Each successive Copyright Act has provided
slightly differently for bequests, so the effect of a bequest depends on the
date of death of the donor. The differences are all set out in section 3.3
of my book, for those who have the hardihood to obtain it.
In brief (please look at the book for more details):
Unless otherwise bequeathed, copyright descends to the residuary legatee. If
explicitly bequeathed, it descends as bequeathed. However, if copyright is
not mentioned in the will, and certain types of material are explicitly
bequeathed, there are presumptions about copyright that apply. The following
presumptions emphatically do not apply to any other form of gift.
If the testator died before 1 June 1957, and was the author of an
unpublished work the manuscript of which he or she bequeathed, ownership of
the manuscript as a result of the bequest is taken to be prima facie proof
of ownership of the copyright. A manuscript is taken to be a literary,
dramatic or musical work on paper or similar.
If the testator died between 1 June 1957 and 31 July 1989, and bequeathed an
original document embodying the unpublished manuscript of a literary,
dramatic or musical work, or an artistic work, the bequest was taken to
include any copyrights owned by the testator.
Bequests since 1 August 1989 are as I said before.
So, as to your queries. In the first case, yes, the institution would own
the copyright provided the relevant conditions applied at the time of death
of the testator. The provisions do not apply to works published before the
testator's death or to works published before 1 July 1912. You might have
difficulty now though in asserting copyright in works if you have for many
years treated it as being owned by the family. A court is quite likely to
find that you have acquiesced in the family's claim. I should therefore be
doubtful about the value of your goldmine unless a bequest is relatively
recent or the works have not been significantly exploited by others hitherto
without objection from you. If you would like more detailed advice on a
particular case, please ask. You would also need proper legal advice before
approaching a family to make a claim.
As to your second query, the copyright would descend with the manuscripts if
they were bequeathed by the copyright owner in 1944, but not if they were
donated in some other way. If they were then bequeathed by the third party
to an institution, the copyrights would accompany them, but if they were
merely donated the copyrights would remain with the third party unless
explicitly assigned. There can be no difference if the Crown is the
recipient of a bequest, but in that case HMSO is the administrator of the
copyrights, not the institution that holds the material. It must of course
be a bequest by the testator; a later arrangement made by the executors
would not count.
Tim
-----------------
Tim Padfield
Copyright Officer
Curator of Photographs
Secretary of the Lord Chancellor's Advisory Council on Public Records
Public Record Office, Kew, Richmond, Surrey TW9 4DU
Tel: 020-8392 5381
Fax: 020-8392 5295
e-mail: [log in to unmask]
http://www.pro.gov.uk
> ----------
> From: ijfmorti[SMTP:[log in to unmask]]
> Sent: 30 January 2002 21:26
> To: Padfield, Tim; ARCHIVES-NRA
> Subject: RE: donation wording for wills
>
> At the risk of sounding like a complete ignoramus to the entire list, can
> I
> clarify that point Tim made, as I am sure I am not the only one to be
> surprised to read it, and it strikes me as important, especially with
> regard
> to literary MSS and photographs, rights to which can be valuable.
>
> I had always been led to believe that an author's family continued to be
> the
> copyright holders of the author's works (published and unpublished) after
> the
> author's death, if copyright was not separately bequeathed, even if the
> MSS
> were bequeathed to an institution. If an author bequeathed all his MSS to
> the
> university library and made no separate stipulation regarding copyright,
> does
> that mean we own the copyright in his unpublished works, not his family?
> And
> does that mean we could, for the sake of argument, forbid his literary
> executor from publishing the said works? And would we (again, for the sake
> of
> argument) have a claim on income arising from new editions of published
> MSS in
> our custody?
>
> Does this also apply at one remove, i.e. if the unpublished MSS of A
> Certain
> Poet (1920-1944) were given after his death to A Third Party without
> reference
> to copyright, and A Third Party gave them to the university library with
> no
> reference to copyright, does that mean the university library is now the
> copyright owner? If the said Third Party was the Govt (in lieu of tax),
> does
> that make a difference?
>
> Please correct me if I am grabbing the wrong end of the stick. If I am
> not,
> are there any good literary copyright valuation experts out there? Many of
> us
> may be looking after small goldmines.
>
> Ian
>
>
> >===== Original Message From "Padfield, Tim" <[log in to unmask]>
> =====
> >I was tempted to step in when Chris first posted this query, but do so
> now
> >following Richard's reference to copyright.
> >
> >If the will does not mention copyright explicitly, any bequest of
> documents
> >or 'other material things' (such as computer discs) will carry with it
> any
> >copyright that the testator owned in the items bequeathed. It is
> important
> >to notice the caveats mentioned here:
> >* if the testator bequeathes copyright explicitly, that bequest
> >over-rides the presumption set out above, and the recipient of the
> documents
> >will not own the copyright (unless of course the recipient of the
> documents
> >is also the recipient of the copyright).
> >* a testator leaving papers is most unlikely to own all the
> copyrights
> >in the material bequeathed, and in some cases may own none. Private
> papers
> >will be full of letters received, all of which are the copyright of the
> >authors not of the addressee. A collection of interest to a specialist
> >archive may well contain, or even be composed entirely of, items
> purchased,
> >and the copyright is most unlikely to have been purchased as well.
> >
> >Thus, Richard's point about knowing what the rest of the will says is
> >important. You need to be able to show that copyright was not bequeathed
> >separately. Alternatively, ensure that in addition to the bequest of
> >documents there is a bequest of such copyrights, and all rights related
> to
> >copyright, as are the property of the testator in the documents
> bequeathed.
> >
> >Tim
> >-----------------
> >Tim Padfield
> >Copyright Officer
> >Curator of Photographs
> >Secretary of the Lord Chancellor's Advisory Council on Public Records
> >
> >Public Record Office, Kew, Richmond, Surrey TW9 4DU
> >Tel: 020-8392 5381
> >Fax: 020-8392 5295
> >e-mail: [log in to unmask]
> >http://www.pro.gov.uk
> >
> >
> >> ----------
> >> From: Richard Taylor[SMTP:[log in to unmask]]
> >> Reply To: Richard Taylor
> >> Sent: 30 January 2002 16:58
> >> To: [log in to unmask]
> >> Subject: Re: donation wording for wills
> >>
> >> Chris and colleagues
> >>
> >> Two postings from me in as many minutes!
> >>
> >> Pasted in below (to avoid sending an attachment) is the wording of our
> >> guidance sheet for potential bequests.
> >>
> >> I would particularly stress the importance of getting hold of a copy of
> >> the
> >> relevant part of the will in advance, and then getting hold of a
> complete
> >> copy of the will after probate has been granted. We have had a couple
> of
> >> recent "debates" with heirs and executors about copyright issues in
> >> archives willed to us, which we have been able to resolve to our
> advantage
> >> due to knowledge of the full provisions of the will.
> >>
> >> Richard Taylor
> >> NRM
> >> +++++++++++++++++++++++++++++++++++++++++++++
> >> Text:
> >> GUIDANCE ON MAKING A BEQUEST IN FAVOUR OF THE NATIONAL RAILWAY MUSEUM
> >>
> >> This note is intended to help you if you are considering making a
> bequest
> >> to the National Railway Museum.
> >>
> >> In order to ensure that your money and possessions are divided as you
> wish
> >> after your death, it is important to make a Will. If you die intestate
> >> the
> >> State writes a Will for you and your possessions are distributed
> according
> >> to this Law of Intestacy and you miss all the chances of passing on
> >> particular gifts to your friends or favourite charities.
> >>
> >> A solicitor can help you draw up a Will in any form you desire but
> these
> >> notes are intended to give guidance if you wish to leave objects or
> money
> >> to the National Railway Museum.
> >>
> >> The Museum is always grateful to be considered as the recipient for a
> >> collection and generous donations have helped to build the national
> >> railway
> >> collection over the years. However, we reserve the right to decline
> >> objects
> >> which duplicate existing holdings or which fall outside our collecting
> >> policy.
> >>
> >> Potential benefactors are encouraged to discuss the bequest in general
> >> terms at an early stage with a Curator who can provide advice on the
> >> museum's collections policies. A full description of all items to be
> >> bequeathed should be made, which will help both the executors dealing
> with
> >> the estate and the National Railway Museum.
> >>
> >> If you propose to leave an object or a collection of items to the
> Museum
> >> the preferred wording is:
> >>
> >> I bequeath to the Board of Trustees of the Science Museum, upon trust
> for
> >> the Nation and deposited in the collections of the National Railway
> >> Museum,
> >> York, my ................
> >>
> >> In some instances you may be asked if the Museum may select items for
> your
> >> collection for permanent preservation and dispose of other material to
> >> another organisation or be sold to further the work of the Museum in
> other
> >> ways.
> >>
> >> If you intend to leave money to the Museum, the wording should be:
> >>
> >> I bequeath to the Board of Trustees of the Science Museum for
> furthering
> >> the aims and the objectives of the National Railway Museum, the sum of
> >> .............
> >>
> >> It is helpful if the Museum can have a copy for our files of that part
> of
> >> your Will which specifically refers to any bequest and of any related
> list
> >> of items.
> >>
> >> You may also be interested to know that bequests in favour of the
> National
> >> Railway Museum will qualify for inheritance tax relief as the Museum
> has
> >> charitable status. Your solicitor should be able to advise you on how
> >> this
> >> benefit is acquired or you could contact the Inland Revenue for the
> >> relevant explanatory leaflet.
> >>
> >> We thank you for supporting the work of the National Railway Museum
> which
> >> relies on public funds earned income and donations to fulfil its role
> as
> >> trustee of the National Railway Collection.
> >>
> >>
> >>
> >>
> >>
> >> At 04:38 PM 1/30/02 -0000, Chris Jones wrote:
> >> >Dear all,
> >> >I've been asked to supply the wording for the will of someone who
> wishes
> >> to leave her archive to us. Is there a standard paragraph somewhere
> that I
> >> could draw upon?
> >> >Many thanks for your help.
> >> >Chris Jones
> >> >National Resource Centre for Dance
> >> >
> >> >
> >> ====================================================
> >> Richard Taylor
> >> Curator, Archive Collections
> >> National Railway Museum
> >> Leeman Road
> >> YORK YO26 4XJ
> >> ENGLAND
> >>
> >> Tel +44 (0)1904 686 289
> >> Fax +44 (0)1904 611 112
> >> Email [log in to unmask]
> >> Website http://www.nrm.org.uk
> >>
> >> The National Railway Museum is the European Museum of the Year 2001
> >> =====================================================
> >>
> >>
> >>
> >>
> >> ********************************************************************
> >> This e-mail and attachments are intended for the named
> >> addressee only and are confidential. If you have received
> >> this e-mail in error please notify the sender immediately,
> >> delete the message from your computer system and
> >> destroy any copies. Any views expressed in this message
> >> are those of the individual sender and may not reflect the
> >> views of the National Museum of Science & Industry.
> >>
> >> The NMSI website can be found at http://www.nmsi.ac.uk
> >> *********************************************************************
> >>
> >
> >
> >-------------------------------------------------------------------------
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> ----
> -------------------------
>
> Ian JF Mortimer, BA MA FRHistS ILTM
> Archivist, University Library
> Part-time Lecturer, Dept of History
> University of Exeter
>
> Home email: [log in to unmask]
> Work email: [log in to unmask] (Mon, Tues & Weds)
>
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