Publication

Significance and nature

The terms ‘publication’ and ‘published’ need to be approached with care because they are applied to different aspects of copyright law in rather different ways:

• • Whether a work has been published or not is a matter that can affect its qualification for copyright protection (see 3.1).

• • The act of publication of a previously unpublished work, which is irrevocable, may have consequences for the duration of copyright (so long as publication was authorised by the copyright owner).

• • The lawful publication, anywhere in the EEA, of any particular copy of a work ‘exhausts’ the copyright owner's right in publication of that copy, so that a book may be sold secondhand for instance (see 5.1.3).

• • Unauthorised publication of a work, whether previously published or not, is an infringement (see 5.1.3), but perhaps oddly does not result in an unpublished work becoming, for copyright purposes, a published one (see 4.1.9).

• • First publication of an unpublished literary, dramatic, musical or artistic work or a film in which copyright has expired creates a new publication right for the publisher (see 8.3). However, if such a work is first published while still in copyright, publication right can never be applied to it.

Besides the issues outlined above, an archivist or records manager needs to be able to distinguish between published and unpublished works because the legal provisions concerning copying by libraries and archives differ between published and unpublished material, which affects how much of a work may be copied, by whom and for what purposes (see 5.4).

Directive 2006 (Term) art 4; 1911 s1(3); 1956 s49(2)(a); 1988 (CDPA) ss18(2), 175(6); SI 1996/2967 regs 16–17, 26(1)

‘The public’

‘The public’ has tended to be given quite a wide meaning by the UK courts, and could probably be taken to include a fairly restricted group of people so long as it was possible in principle for anyone, or anyone eligible (such as all women in the context of the Women's Institute), to join the group.