WWI Photographs & Copyright

[Guest]

Ah, well that will be "Crown Copyright"; according to The National Archives that is another kettle of fish!

David

Agreed but at least they don't charge a fortune and are more than willing to provide permission to reproduce....MG

[Michael Johnson]

I think (to the best of my knowledge etc) this is a different problem. If (in England and Wales) I take a photograph of McDonalds® logo, I took the photograph and I therefore own the copyright in that photograph (unless I was commisssioned to take it, when the situation may be different). McDonalds® however may be concerned to protect their trademarks (they claim quite a few including would you believe, twoallbeefpattiesspecialsaucelettucecheesepicklesoniononasesameseedbun®), and any inappropriate use (in their view) of my photograph of their trademark would probably get me a letter from their lawyers.

Similar concerns apply to all logos - but most trademark owners are not as well known for being litigious at McDonalds®.

David

I work in legal publishing, and when we revised the Intellectual Property title I was tempted to create a classification as follows:

Trademark protection

1. Macdonalds

2. International Olympic Committee

3. Walt Disney

Amazing how many cases would fit under that

Just don't use arches, "Mac", Olympic, or rings and there won't be any trouble. Lots of Greek restaurants have received "cease and desist" letters.

One problem with photographs is that it is usually impossible to determine who took them.

[David_Underdown]

Hargreaves does at least suggest a way forward for dealing with "orphan works" where a reasonable search has failed to establish the rights holder.

[dycer]

I have real difficulty trying to understand copyright restrictions on WW1 era photographs.

For two examples.I took a WW1 recruiting Regimental Post Card,to a current High Street Photographers and requested they take a copy of it,so that I could send the copy to a Forum Colleague,to aid his personal research.The fact that the Post Card bears the words,on its reverse "Copyright-Printed for H.M.Stationery Office" bothered the assistant and he had to consult his superiors before accepting it for copying.

Another Forum Colleague wished to acquire a copy of a Battalion WW1 action photograph,original of which is held by the Imperial War Museum,who wished to charge an unreasonable amount,to his and my mind,for what is after all a general and anonymous photograph but obviously has been lodged with the IWM and is apparently coveted and guarded by it.

Whether Regimental Photographs,held by the IWM,are now beyond distribution to, and display by the Regimental Museum, for copyright and money reasons, is something I cannot understand.

Equally I have period,strictly pre WW1 Camp photographs,of a TF Battalion Camps.Those photographs were taken and converted by the photographer to Post Cards and he now holds the copyright,quite reasonably because he wished to conserve his trade.

I am quite happy to share the Photographers work,with Forum Colleagues, but understand that if his descendants now wish to recoup his ongoing importance,concerning the lead up to WW1,and wish to charge me for the use of his photographs I will be liable.

Equally I resent giving anonymous pre-WWI Camp ascribed photographs to an erstwhile Forum colleague who then sold them on E-Bay and the fact that a current Forum Colleague "won" them, at personal financial cost, because had I known ,I would have freely given them to the current holder,subject to ongoing copyright laws or not , liability of which are down to me,thus avoiding his personal financial expenditure.

George

[tharkin56]

i have several books/magazines i would like to use images out of for a book. The grat war i was there published 1938 to 1939 and The Great War The Standard History of the all Europe Conflict published 1916. Some photos say inderneath Official British Photo or Official French Photo.

If these were official was the intention for them to be used by anyone who wanted.

Others have the IWM underneath

Any thoughts appreciated

[John_Hartley]

You do not need permission from the copyright owner to copy this image from the Memorial’s web site, or to reproduce it elsewhere.

Put it like this....next time I'm looking for a photo, I'm first going to be searching the AWM site, rather than IWM.

[Tom W.]

i have several books/magazines i would like to use images out of for a book. The grat war i was there published 1938 to 1939 and The Great War The Standard History of the all Europe Conflict published 1916. Some photos say inderneath Official British Photo or Official French Photo.

If these were official was the intention for them to be used by anyone who wanted.

Others have the IWM underneath

Any thoughts appreciated

Having published two books on WWI and just finished my third, I'll tell you what I've learned:

1. The copyright of the original image expires 75 years (give or take) after the death of the creator.

2. The copyright of a period copy of the image is owned by the person who presently owns that copy of the image.

As an example take the image in this post. I bought a copy of this image on eBay. It dates from 1918. I own the copyright on this particular copy of the photo. The Imperial War Museum and the Bundesarchiv both have copies of this image in their collection. If you ordered a copy of the image from either institution and used it in a publication without paying them, they could get you for copyright infringement.

If I sent you a copy of my copy of the image, and you used it in a publication without my permission, I could get you for copyright infringement. However, no judge or jury would award me any real damages, because the image is so old and widely publicized. On the other hand, the Imperial War Museum or the Bundeswehr could probably get a modest award of damages, as they have much more pull and could demonstrate that use of the image without payment of a fee had materially hurt them. They depend on user fees to finance their activities. As a guy whose books sell very few copies, I couldn't make the same argument.

If you bought your own period copy of the photo on eBay, you could use it to your heart's content, because it's in the public domain. The man who took the photo died long ago, and his image of a tank and German stormtroopers no longer has a copyright. However, the copy of the image in the collections of the Imperial War Museum, the Bundesarchiv, and Tom W. all have copyrights that are based on our ownership of the individual paper copy of an image that no longer has a copyright.

(By the way, I once wanted to put up a Web site about WWI flamethrowers. The Imperial War Museum told me I could use one of their images without paying a user fee. This was a few years ago, so the policy may have changed. Always ask first.)

[Tom W.]

The AWM has an entire page dedicated to explaining the copyright of items held in their collection https://www.awm.gov.au/copyright/

The user fee system is mentioned elsewhere on their website and is determined thus:

User fees may also apply if you intend to use the material for commercial use or public dissemination of any kind.

I take that to mean that anyone is free to use these photos in any way they wish without obtaining permission. Although I'm not quite sure how that can justify a 'user fee' for commercial use on top of the standard 'production fee' for simply obtaining a copy. If the photo is copyright free and I simply pay the production cost for a copy, what stops me from later using it for a commercial purpose?

You must pay a user fee to commercially use the AWM copy of the image. They're not charging you to use the image, because the image no longer has a copyright; they're charging you to use their copy of the image.

When they say,"You do not need permission from the copyright owner to copy this image from the Memorial’s web site, or to reproduce it elsewhere," they mean you need permission from the Memorial to copy their copy of the image and to reproduce it elsewhere. They own the copyright of any paper copy of a copyright-free image in their collection.

If you can find your own period copy of the image, it will be in the public domain and you'll be free to use it commercially and put your own copyright on it.

But if you get a copy from the AMW, they own the copyright on that copy and can legally charge you to use it.

[Heid the Ba]

One of the archivists argued that they might not have copyright of the original but they have copyright of the "digital image" of the copy of the original.... which prompted me to ask them what if I took a photo of their digital-image-of-the-copy-of-the-original-that-has no-proven-provenance, would I then have copyright of my digital image? There was no answer.

That is because they are talking rubbish. Otherwise any copy of anything in copyright would circumvent the legislation. As you say, charging a fee for a copy or access to a digital image is perfectly understandable, claiming that is because of copyright is not.

Don't get me started on the claims made for the Data Protection Act . . .

Edit: to remove wee sweary word.

[Chris_Baker]

The Imperial War Museum told me I could use one of their images without paying a user fee. This was a few years ago, so the policy may have changed. Always ask first.)

Good advice. I did the same some years ago. I got the feeling that permission was given for restricted, not-for-profit use.

[Guest]

Good advice. I did the same some years ago. I got the feeling that permission was given for restricted, not-for-profit use.

I spoke to the NAM today and they were exceptionally accommodating and allowed me to post one of their photos - see Dead Man's Gully thread under Gallipoli. They seemed very comfortable to allow their images to be used on forums as long as it is clear who owns the copyright and that the NAM is acknowledged and it was for research discussion only. All done within a few minutes by calling and confirming with an email. I paid £6 for a high resolution digital image. MG

[Guest]

By some good fortune I spoke at length with a friend who is a media lawyer and does a lot of work on copyright. He says that under the current UK Law we don't have Fair Use but we do have Fair Dealing which is similar. He says that there is a lot of scope within Fair Dealing to provide avenues for researchers to use images, particularly under a section called "Criticism or Review" (from the above link)

Criticism or Review - Quoting parts of a work for the purpose of criticism or review is permitted provided that:

• The work has been made available to the public.
• The source of the material is acknowledged.
• The material quoted must be accompanied by some actual discussion or assessment (to warrant the criticism or review classification).
• The amount of the material quoted is no more than is necessary for the purpose of the review.

So for the purposes of posting an image on the GWF, it looks pretty useful. MG

[Auimfo]

When they say,"You do not need permission from the copyright owner to copy this image from the Memorial’s web site, or to reproduce it elsewhere," they mean you need permission from the Memorial to copy their copy of the image and to reproduce it elsewhere. They own the copyright of any paper copy of a copyright-free image in their collection.

I don't think so Tom. If they have gone to the effort of putting together an entire page (and more elsewhere on the site) about copyright, it seems very odd that they would be quite so loose with their explanation - particularly if misunderstanding it might mean their rights are infringed. They freely allow the copying of 'this' image (i.e. the one held by the AWM) and clearly state you do not need the permission of the copyright holder (which would be the AWM by your understanding) because it's expired. If they meant this to mean that you still need the permission of the AWM because they hold the copyright, I'm pretty sure they'd say so.

The words 'Copyright expired - public domain' are pretty clear and I doubt they'd use them if they still held copyright over the images in their collection. Couple that with their explanation of this label and I don't think there'd be any chance of being prosecuted.

Cheers,

Tim L.

P.S. I know someone in the photographic department at the AWM - I might ask her to confirm what they mean.

[SiegeGunner]

They may be happy for you to copy the low-res image on their website, but they will presumably still want to charge you for a high-res copy of the same image.

[Tom W.]

The words 'Copyright expired - public domain' are pretty clear and I doubt they'd use them if they still held copyright over the images in their collection.

If that were the case, they wouldn't be able to charge user fees. Note that they charge user fees for images that are in the public domain.

It's because they own the copyright on the individual paper copy of that image. The "public domain" applies to the image, not the individual copy of that image in the collection of the AWM. Legally, "image" is the snapshot in time that the photographer captured. That copyright has expired.

Since the copyright on the image has expired, those who own paper copies of that image are now free to claim copyright on that copy, but not on the original image.

Someone said this above:

One of the archivists argued that they might not have copyright of the original but they have copyright of the "digital image" of the copy of the original.... which prompted me to ask them what if I took a photo of their digital-image-of-the-copy-of-the-original-that-has no-proven-provenance, would I then have copyright of my digital image? There was no answer.

This is the crux of the matter. There's an artist named Richard Prince who takes photos of photos and claims them as his own. He often photographs advertisements and uses them completely unaltered. He says that once the images are removed from their function as advertisements, they become his comments on our culture by showing us archetypical images of our society. To him, that's "fair use."

Prince was successfully challenged for copyright infringement by a Patrick Cariou, photographer whose work he used:

http://www.artfagcity.com/2011/03/23/parsing-patrick-cariou-v-richard-prince-the-copyright-infringement-ruling/.

The photos in question were significantly altered or "transformed," while much of Prince's other work uses unaltered photos. It seems strange that this particular case was the one that the judiciary found to be a violation of fair use. Then again, the U.S. legal system seems pretty arbitrary at times.

[Tom A McCluskey]

Hi All,

Photographs taken by British soldiers (and Crown Servants), in the course of their duties, are subject to [uK] Crown Copyright. It would be difficult to prove that a piece of original work, produced/'authored' by a paid Crown Servant/Soldier in the course of their duties, was not covered by Crown Copyright. Crown Copyright, though shares similar principles (a piece of original work, etc.), is not the same as Copyright. 50 years after a photo subject to Crown Copyright is published, it is considered to be in the Public Domain.

Regardless of any: delegation, license, or entering the Public Domain, an item subject to Crown Copyright does not stop being owned by the Crown (its legal ‘first owner’).

Aye,

Tom McC

[Auimfo]

I can see what you're driving at Tom but I still disagree with you. If I understand you correctly, you're saying that that actual 'physical document' is covered by copyright even if the 'image' is not but I suspect we might be confusing copyright with ownership. Yes, they might own the physical document and can therefore determine how it is used but they don't hold copyright over the image on it. Therefore anything with an expired copyright appearing on their website is free for download and use in whatever way you choose. (although they are only low-res).

The AWM has a number of different categories of copyright and one of those specifically refers to them holding the copyright:

Australian War Memorial Copyright

This term describes material held in the National Collection, where the copyright protection period is still in force and the copyright owner is the Australian War Memorial.

Therefore, if (as you interpret) they hold the copyright to the physical photograph in their collection, it should be classified as above and not 'Copyright expired - public domain'.

The User Fees have no bearing on copyright. They explain them as follows:

A user fee is a commercial use fee that the Memorial levies on all commercial use of all collection items. This is not a copyright fee. Regardless of a collection item's copyright status, user fees may be applicable to collection material used in a commercial way. User fees are in addition to production costs.

Cheers,

Tim L.

[Tom W.]

Yes, they might own the physical document and can therefore determine how it is used but they don't hold copyright over the image on it.

That's what I've been saying. The image is in the public domain, but in practice that doesn't apply to all individual copies of the image dating back to the initial production of the image. It doesn't apply to the glass-plate negatives in the museum's collection.

All you have to do to see that the AWM believes it holds the copyright over the individual photo or negative is look at their Web site. The photos have the AWM watermark on them.

The user fees have no legal bearing on the copyright of the image. But the AWM charges user fees because it believes it holds the de facto copyright over the individual photo or glass-plate negative in question.

This has never really been tested in court. What may eventually happen is that someone will file a lawsuit against a museum or photo library in order to create legislation that will prevent any form of restriction on the free use of images in the public domain. A lot of people believe that museums have no right to charge user fees:

http://archiv.twoday.net/stories/3742519/

The problem is that if museums and photo libraries can no longer charge user fees for images in the public domain, there will be no incentive for them to provide copies.

[Auimfo]

Ok, then perhaps we should define the two as 'ownership' and 'copyright' because I think there's a big difference between the two.

At the risk of starting a 'what if' conversation, which in reference to copyright could go on ad infinitum, I'll pose the following scenario...

Supposing I was to obtain a printed copy of a photograph classified as 'Copyright expired - public domain' from the AWM's collection without having to agree to any restrictions of use or payment of user fees. Would I then be able to use this copy for whatever purpose I wanted without fear of being subjected to legal action or demand for payment? I believe so. There's no contractual obligations between myself and the AWM and nor is the image covered by copyright.

Cheers,

Tim L.

P.S. I accept that the fees are put towards the maintaining of the collection and I don't mean to advocate that we all try and circumvent the system. I'm just interested in understanding the copyright laws a little better.

[Tom W.]

Supposing I was to obtain a printed copy of a photograph classified as 'Copyright expired - public domain' from the AWM's collection without having to agree to any restrictions of use or payment of user fees. Would I then be able to use this copy for whatever purpose I wanted without fear of being subjected to legal action or demand for payment? I believe so. There's no contractual obligations between myself and the AWM and nor is the image covered by copyright.

If you were walking down the street and happened to find a copy of an AWM photo made from an image classified "Copyright expired--Public Domain," you'd pick it up and turn it over, and on the back you'd find a label that shows that the AWM considers itself the copyright owner of all photos in its collection:

[Tom W.]

For good measure, here's what you find on copies of public-domain photos ordered from the British National Archives and the Imperial War Museum:

[Guest]

To add to this - here are the Conditions of Copyright and Personal Use given by the National Army Museum. This was attached to 6 photos that I had digitally copied by the NAM. 3 of these photos are in other collections and I am certain I can demonstrate that the author's originals are in the Liddle Collection. The NAM was quite clear that they are aware of other copies, but still would exercise their right to protect their copies. The photos had been published in 1930, so the 70 year rule would have expired in 2000 on the original. I am not sure why the paragraph numbering has gaps - it is presented as per the original NAM document - I assume they adjust the conditions for different types of documents...Reading this carefully there are some absolutely extraordinary demands, particularly Paragraph 12. It seems clear from this that there are blanket restrictions on Copyright, restrictions on Copyright of their copies of originals and restrictions on the "Supply Agreement" - so effectively there are layers of restrictions....also Para 16 ensures that you don't have copies of the same document from other sources - i.e. one can't use their image and pretend it came from another source. It looks as if even if one could prove there is no copyright, they would still exercise a Supply Agreement with exactly the same restrictions on reproduction, usage, etc. ........ Lots to mull over. MG

General Conditions

1. All communications concerned with the reproduction of works, images and other materials in the Museum's Collections should be addressed to its Department of Photography.

3. Permission must be obtained before any non-mechanical reproduction (eg: any sketch, drawing or painting) of any item in the Museum's collections is made for any purpose. A fee may be charged.

5. The Museum will not supply Reproductions of, or give permission to reproduce, the following: any item in its Collections in which copyright subsists and of which the Museum is not the owner; any item which is not and never has been the absolute property of the Museum; any item which is subject to an official security classification or subject to export controls or which depicts such an item; or any other item of which the Director of the Museum considers it would for any reason be inappropriate to supply a reproduction.

6. The Museum reserves the right not to supply Reproductions to, or allow the facilities of the Museum to be used by, any person, firm or company who or which commits any substantial breach of, or persistently breaches, these Conditions.

8. The Museum shall be entitled to charge for any use of any Reproduction supplied by the Museum or any reproduction, copying, photographing or filming of any items in its Collections which is not authorised by the Museum, or which exceeds any authorisation given by the Museum, at the rates applicable to authorised use and fees charged by the Museum for unauthorised use shall be paid within 5 working days after submission of invoice. The Museum shall be entitled to levy a discretionary charge to compensate the Museum for any loss, costs or charges incurred by the Museum caused directly or indirectly from such unauthorised use.

9. Although the Museum endeavours to ensure that information included in the captions to its photographic stock is as accurate as possible, the Museum does not accept liability for loss or damage caused to any person by reason of any inaccuracies in such information.

Copyright

10. Subject as specified in Condition 5, the Museum reserves the copyright in all images, works and other materials in its Collections and in all Reproductions made by the Museum and members of its staff.

11. You are licensed to use Reproductions supplied by the Museum only for the purpose set out in the Order Form or Application Form applicable to that supply. Any other use, reproduction or copying of that item will be a breach of the applicable

Supply Agreement

and an infringement of copyright in the work, image or other material of which the item is a reproduction.

12. In relation to any item in the Museum's Collections in which the Museum does not own the copyright, you are not permitted to make direct contact with the owner or ostensible owner of copyright to request consent to reproduce it. Upon receipt of a written request from you, the Museum will approach the copyright owner at their last known address for permission to reproduce the item.

13. You are not permitted to modify, adapt, or make any addition to or deletion from or otherwise manipulate the image contained in any Reproduction supplied by the Museum or in any photograph or film taken at the Museum without the express written consent of the Museum.

14. Infringement of copyright, which includes the reproduction of any copyright item for a purpose outside the scope of any permission given by the copyright owner for the copying of that item, is both a criminal offence and actionable by the copyright owner.

Supply of Reproductions for Personal Use

15. You are permitted to use only for the purposes of research or private study any Reproductions which you state on the Photograph Sales Order Form are required for your personal use. You must not supply a copy of such Reproductions to any other person.

16. Whenever Reproductions are supplied to you for your personal use you will be deemed to represent and warrant to the Museum: that you have not previously been supplied by anyone with a copy of any of the material reproduced; that you will use the Reproductions only for the purposes of research and private study and will not supply them to any other person; and that to the best of your knowledge, no person with whom you work or study has made, or intends to make, a request for substantially the same material for substantially the same purpose.

Photography of Items in the National Army Museum

24. The Museum houses some items which are either subject to an official security classification or depict items which are on loan to the Museum by persons who maintain control over publication or commercial use of reproductions of their property. For that reason the Museum prohibits the taking of photographs in the Museum. Anyone who requires a photograph of any item in the Museum's Collections must purchase it from the Museum.

[Guest]

This is a real scenario that I have encountered....

1. Three archives A, B and C all have a 1915 photo with no provenance. All acknowledge the existence of the other copies but still exercise their copyright on their copies. The 3 copies are individual photos not embedded in any album. There is no material that associates these copies with any other photos. Call these copies Copy1, Copy 2 and Copy 3. There is no doubt that the photos are all copies.

2. The original appeared in an large album with personal diaries in another collection in Archive D having been undisturbed in the archives for years. Call this Original image Photo 0 (zero). The photos in the album are sequentially numbered and the accompanying diary and context confirms the photographer/author as the originator of these photos, including Photo 0. The author died over 70 years ago. The photos had been in a publication in 1930.

Here are my thoughts on Who has the Copyright...

3. The author died , so the copyright on anything he produced (diaries included) should have expired 70 years after his death (under UK law). and 70 years after first publication. In my view the copyright on the original has expired.

4. Archive D can not claim copyright on the original as it has expired, however Archive D however has ownership. They will charge a fee to reproduce images of the Photo 0. They can also ask for a Supply Agreement, including a usage fee which restrict users from reproducing their Copy without their permission. This is not a copyright, but a condition of getting a copy. They can (and do) exercise their copyright on their newly created digital Copy 4 (not Photo 0) - a subtle difference. If they allowed me to take my own unrestricted photo of their original (call it Copy 5), that copy would be my copyright. This is why (I think) many archives will not allow us to take our own photos of documents in their possession. Similarly if I had access to the diaries and transcribed them, I would have copyright over the transcriptions but not the original diary which has expired (70 year rule).

5. Archives A, B and C do not have Copyright on the original, but have Copyright on the images of their Copies 1, 2, and 3. If they allowed someone to take a photo of their Copies 1,2 or 3, that new copy Copy 6 say, would be the copyright of the photographer, not the Archive. If I took a photo of their Copy, and reproduced it, that would be a breach of Copyright of Copy 1,2 or 3.

6. The difficulty comes where there are other sources in the public domain. If say I found a published book over 70 years old with the same photo in it, I could reproduce that photo without restriction. The crux of the matter is that the high resolution images can only usually be obtained from one of the Archives A,B, C or D, so I have to ask for a digital copy, pay the fee and agree to the copyright restrictions on their Copy (not the original). If Archive D allowed me to take my own photo of Photo 0 without restriction, I could reproduce that image and also exercise my copyright on that digital image just like Archive A, B and C.

7. In theory, I could write an article for publication in a journal about Photo 0 (maybe I should?) and illustrate it with Copy 1,2,3,4 and 5. I would have to seek permission of Archives A, B, C and D to do this, as they have copyright on Copies 1,2,3, and 4 but not Copy 5 (mine). No one has copyright on Photo 0. My only other option is to argue that under Fair Dealing particularly under a section called "Criticism or Review" quoting parts of a work for the purpose of criticism or review is permitted provided that:

• The work has been made available to the public.
• The source of the material is acknowledged.
• The material quoted must be accompanied by some actual discussion or assessment (to warrant the criticism or review classification).
• The amount of the material quoted is no more than is necessary for the purpose of the review.

8. Finally, if Archive D can not exercise Copyright over Copies 1,2 and 3 because the copyright has expired, however, if the photo had been made less than 70 years ago, Archive D could exercise Copyright on Copies 1,2, and 3 as long as it can prove it has the original. This is another reason why, where original authorship is not known, some Archives are reluctant to provide copies, in case someone comes out of the woodwork claiming original ownership of Photo 0.

Does this make sense? This is only what I have deduced (for the UK) from chatting with lawyer friends. I may be totally wrong. .......Any thoughts? Any mistakes are mine. MG

P.S. The Economist's take on the Hargreaves review is not optimistic.... see here

[edit: to be clear this is NOT legal advice. I am just trying to understand in layman's terms what the restrictions are. ]

[centurion]

This is a real scenario that I have encountered....

1. Three archives A, B and C all have a 1915 photo with no provenance. All acknowledge the existence of the other copies but still exercise their copyright on their copies. The 3 copies are individual photos not embedded in any album. There is no material that associates these copies with any other photos. Call these copies Copy1, Copy 2 and Copy 3. There is no doubt that the photos are all copies.

2. The original appeared in an large album with personal diaries in another collection in Archive D having been undisturbed in the archives for years. Call this Original image Photo 0 (zero). The photos in the album are sequentially numbered and the accompanying diary and context confirms the photographer/author as the originator of these photos, including Photo 0. The author died over 70 years ago. The photos had been in a publication in 1930.

Here are my thoughts on Who has the Copyright...

3. The author died , so the copyright on anything he produced (diaries included) should have expired 70 years after his death (under UK law). and 70 years after first publication. In my view the copyright on the original has expired.

4. Archive D can not claim copyright on the original as it has expired, however Archive D however has ownership. They will charge a fee to reproduce images of the Photo 0. They can also ask for a Supply Agreement, including a usage fee which restrict users from reproducing their Copy without their permission. This is not a copyright, but a condition of getting a copy. They can (and do) exercise their copyright on their newly created digital Copy 4 (not Photo 0) - a subtle difference. If they allowed me to take my own unrestricted photo of their original (call it Copy 5), that copy would be my copyright. This is why (I think) many archives will not allow us to take our own photos of documents in their possession. Similarly if I had access to the diaries and transcribed them, I would have copyright over the transcriptions but not the original diary which has expired (70 year rule).

5. Archives A, B and C do not have Copyright on the original, but have Copyright on the images of their Copies 1, 2, and 3. If they allowed someone to take a photo of their Copies 1,2 or 3, that new copy Copy 6 say, would be the copyright of the photographer, not the Archive. If I took a photo of their Copy, and reproduced it, that would be a breach of Copyright of Copy 1,2 or 3.

6. The difficulty comes where there are other sources in the public domain. If say I found a published book over 70 years old with the same photo in it, I could reproduce that photo without restriction. The crux of the matter is that the high resolution images can only usually be obtained from one of the Archives A,B, C or D, so I have to ask for a digital copy, pay the fee and agree to the copyright restrictions on their Copy (not the original). If Archive D allowed me to take my own photo of Photo 0 without restriction, I could reproduce that image and also exercise my copyright on that digital image just like Archive A, B and C.

7. In theory, I could write an article for publication in a journal about Photo 0 (maybe I should?) and illustrate it with Copy 1,2,3,4 and 5. I would have to seek permission of Archives A, B, C and D to do this, as they have copyright on Copies 1,2,3, and 4 but not Copy 5 (mine). No one has copyright on Photo 0. My only other option is to argue that under Fair Dealing particularly under a section called "Criticism or Review" quoting parts of a work for the purpose of criticism or review is permitted provided that:

• The work has been made available to the public.
• The source of the material is acknowledged.
• The material quoted must be accompanied by some actual discussion or assessment (to warrant the criticism or review classification).
• The amount of the material quoted is no more than is necessary for the purpose of the review.

8. Finally, if Archive D can not exercise Copyright over Copies 1,2 and 3 because the copyright has expired, however, if the photo had been made less than 70 years ago, Archive D could exercise Copyright on Copies 1,2, and 3 as long as it can prove it has the original. This is another reason why, where original authorship is not known, some Archives are reluctant to provide copies, in case someone comes out of the woodwork claiming original ownership of Photo 0.

Does this make sense? This is only what I have deduced (for the UK) from chatting with lawyer friends. I may be totally wrong. .......Any thoughts? Any mistakes are mine. MG

P.S. The Economist's take on the Hargreaves review is not optimistic.... see here

[edit: to be clear this is NOT legal advice. I am just trying to understand in layman's terms what the restrictions are. ]

How long does the "copyright" on A B and C last (in perpetuity?) I would have thought they own their copies and can make charges and conditions exactly like D for supplying a copy but no copyright is involved. They are like a private library that can charge you for use of a book but hold no copyright.

[Guest]

How long does the "copyright" on A B and C last (in perpetuity?) I would have thought they own their copies and can make charges and conditions exactly like D for supplying a copy but no copyright is involved. They are like a private library that can charge you for use of a book but hold no copyright.

A very good question...I agree with your sentiments. To answer the specific question, I believe 70 years from the point of it entering the public domain, which one could easily argue happened in 1915 or thereabouts as the Copies 1,2 and 3 are in loose collections of photos (but distinctly not part of a continuous series of photos that one would see in an album).

An interesting question: Can copyright of an image of an object exist when the copyright on the underlying original object has expired? -a sort of layer cake argument - If so, in theory an archive could make a copy every 70 years (or a digital copy of a digital copy) and effectively claim perpetual copyright by rolling the copies every 70 years. To me this does not sound right. I would be very interested to get to the bottom of this particular question too.

In theory there could be two scenarios:

1. Copies were made and copyright was waived.

This means the owners of the copies could exercise their copyright on these copies and the images of the copies. [Edit - implicitly, copyright can only be exercised on Copies 1,2,3 if the copies were made and the original author's copyright was waived.]

2. Copies were made and copyright was exercised

. Copyright can not be exercised on the copies or images of the copies. Permission is required. ...[Edit: Perth Digger earlier gave an example of Colindale insisting on asking for permission from the owner of the copyright of the Police Gazette to make a copy of a journal in its possession. An example of an Archive acknowledging that it did not have copyright, but also was not exercising any Orphan Work rights (see below)....]

There could be multiple copies of the original photo made in say 1915 and there is copyright on the images of these (physical) copies if copyright was originally waived [Edit: this is presumably the stance of Archive A, B and C on their copies Copy 1,2 and 3]. To me it seems like splitting hairs and that's the part I find difficult to accept under the archaic and arcane UK Law. If the original physical object (read photo) is located and proven to be the original, then all (physical) copies of that image should not claim copyright as the copyright lies with the owner of the original for 70 years (unless waived). The fact that there are copies and examples in books from the 1930s also confirms that they have been in the public domain for 70 years. The only exception is if the object (photo) has not been in the public domain. In this case it is 70 years after the death of the author. In my case, the author/photographer died in 1973, but as copies had been made and copies appeared in publications in the 1930s, copyright had expired 70 years after publication i.e. we do not have to wait until 2043 (1973+70 years). This is the key: For Archives A, B and C to argue that their copies were made and the originator waived his copyright they would have to positively prove this.

To my mind, anyone with a 70 year old copy of an object that has been in the public domain for 70 years should not be able to claim copyright as the copyright on the underlying object has expired. Asking for a Supply Agreement is something entirely different, but from what I have seen, the conditions of the Supply Agreements seem to be virtually identical to copyright agreements. Essentially an Archive could exercise de facto copyright but calling it something else... a bit of legal chicanery.. One day I hope someone will challenge this in the courts and win. I can't see how they wouldn't win to be frank...for starters the owners of the copies would have to demonstrate that copyright on their copies was waived, which would be difficult to positively prove on loose photos in collections. It is not enough to argue that ownership of 70 year old copies assumes copyright was waived. I think this is where arguments over Orphan Works starts to kick in... one would have to demonstrate that reasonable efforts had been made to find the original author, but equally even if the author can not be established, does this give automatic copyright to owners of Orphan Works?........Can, worms, can opener.....

Again, these are just my uneducated views and I may be barking up the wrong tree. MG

EDIT: Another thought: If my thinking is right and I publish a digital book (with high resolution digital images) using an 70 year expired copyright image (which I paid for), anyone buying the book could copy the image and distribute it...i.e. it become a free object with no claim on it. Hurrah.