Qualification

Requirements

Although a work might otherwise be eligible for copyright protection, by reason of such things as its originality and the date of its creation or publication or the date of the author's death, it only ‘qualifies’ for protection under UK law if particular conditions are fulfilled. In practice, most works in UK archives that are eligible for copyright also fulfill the qualification requirements and are therefore protected by the terms of UK law.

There are two grounds for qualification, the status of the author of the work and the place of publication, only one of which needs to be satisfied for the work to qualify, and both relate to the source country. Self-evidently, an unpublished work can qualify only on the basis of authorship. A qualifying country is one that provides copyright protection to a similar standard to that provided in the UK. The definition of a qualifying country was significantly amended in 2014, and is set out in revisions to the 1988 Act and in ‘application to other countries’ regulations of 2016.

For literary, dramatic, musical and artistic works, films and typographical arrangements, a qualifying country must be a party to the Berne Convention or a member of the World Trade Organization (WTO), which means most countries in the world.

For sound recordings and broadcasts, the protection available in the UK for works originating in some countries is limited by the exclusion of some of the provisions of the Act, since there is no equivalent provision for sound recordings or broadcasts in those countries. For sound recordings, qualification depends on whether a country is a party to one or a combination of the Rome Convention, the WIPO Performances and Phonograms Treaty or the Berne Convention, is a member of the WTO or is a ‘miscellaneous country’ listed in part 1 of the schedule to the 2016 Regulations. For broadcasts, there is similar provision depending on whether the country from which the broadcast is transmitted is a party to the Rome Convention, a member of the WTO or one of a few miscellaneous countries identified in the 2016 Regulations. Care is needed to check the category into which a particular country fits and then to study the 2016 Regulations to learn whether and to what extent protection is limited.