Changes to copyright law and guidance

[Guest]

Could you lift a photograph, from any of the millions of (out of copyright books) at archive.org, and publish it?

Mike

[joseph]

Hi Mike,

I personally would buy a copy of the book or try to source a copy of the original photo, you would then know first hand it is out of copyright and no doubt get a far better print of the photo.

This would also take away the problems with digital copyright.

Regards Charles

[spof]

Mike

That out of copyright statement also refers to US copyright which is different to the UK. The most obvious example is 50 years after the author's death compared to 70 years here.

Glen

[centurion]

This may (or might not) be helpful

http://copyrightuser.org

It does have an ask questions address within it.

[David_Underdown]

Hi,

Assumption the means of all evil.

I have a photograph that I can date to the period of the Great War, there is no name or studio on it, can I believe that someone owns the copyright and if so how do I find them.

Publish and deal with the problem if and when it arises?

Otherwise I am, the owner of a postcard that means nothing and is worthless in the due course of history.

Risk is not absolute, if someone approaches me and claims copyright I am not going to dismiss it out of hand.

I have taken many scans and photographs of supposed Copyright material, especially in libraries and archives without them proving anything to do with copyright, I would be cautious (due diligence) if I wanted to publish them for profit. But then who is the onus of proof on and how far up the judicial chain do we go.

Regards Charles

And there is the nub of the problem with so-called orphan works, which as I say are also addressed by the changes to copyright regulations. Presently the rules massively favour those claiming copyright (if your website is hosted in the US, it's very easy for someone to file a DCMA takedown notice). On the whole, if you are not seeking commercial advantage you're probably unlikely to suffer serious consequences, but it's probably wise to have a statement along the lines that while you have attempted to establish the copyright holder with no success, you will take down any image if the copyright holder can be properly established and objects to the image being online. Even if there is no obvious information, it may be worth doing a Google image search, if an image was produced as a commercial postcard or similar, there may be more copies already out there on the web with more infomation attached.

[EastSurrey]

The National Archives kindly don't charge for quoting their documents, but they do charge for reproducing them, or at least they were in 2011, when I asked them for permission.

Michael

[trajan]

For what it's worth (and probably not much for 99% of GWF members!), the Russian Military archives in Moscow charge(d) USD 75 per map colour photograph done by their professional photographers, but that also gave FULL reproduction rights.

[Guest]

Reading this thread and the questions over showing postcards/images highlights some considerable misunderstanding with regards to the UK.

If you buy a postcard, you can sell it to someone else. In the same way that if you bought a limited edition print of a picture. There are hundreds of art dealers and shops and auctioneers who do this. You do not own the copyright of the image but you can sell the postcard/print and show it in a presentation and show it on the internet. What you cant do is make hundreds of copies and sell them unless it is out of copyright. Copyright lasts for 70 years from the date of first publication (key word - note not date of creation) or 70 years from the last day in the year of the author's death (whichever is latest).

1. If the postcard was published after 1944 it is under copyright.

2. If the postcard was published before 1944 and author died after 1944 the image is still under copyright.

3. If the postcard was published before 1944 and the author died before 1944 copyright no longer applies.

With Orphan works, as long as you can demonstrate that you have made a reasonable effort to establish if an image is no longer under copyright you can use it. I am currently researching a number of books where the author's date of death is unknown. My worst-case scenario is that as long as I can demonstrate to a court that I made every possible effort to find out if copyright has lapsed the court will be sensible. If a claimant appeared stage left after I had used it, the court would have to decide what material benefit I had made from this. For someone showing a postcard at a presentation and charging for it, I suspect the material benefit will be considered to be very small.

Some museums and archives claim copyright where none exist arguing (wrongly) that they have the copyright to the images in their collection despite them being copies of an original. Photos are a big area where these institutions tend to make claims. Unless they have a piece of paper stating that the photos were originals and not copies they will have no ground to stand on. Simply asking them to show this is one way you can prove due diligence. If they refuse to show this, then they will have no claim.

Photo albums are a rich source of this kind of controversy. In the Great War men took cameras with them. Often multiple sets of prints were made from the same rolls and given to colleagues. One sees the same photos in a number of collections. The institution has to prove that they have the original and not a copy. (The burden of proof of ownership is on the claimant.)This is extremely difficult to prove without strong corroborating paperwork. I can think of one set of photos that are in the possession of three institutions and one individual. The institutions all claim copyright. None have a shred of proof.

I very much doubt that any of these institutions would challenge any reproduction of the image in court. It is simply a waste of the court's time and limited resources and wouldn't get past first base. The worst case scenario is that the institution refuses access to further information - something quite tricky for a publicly funded institution to do without a cast iron case.

One well known museum accepted that they had a copy of a photo (I had provided proof of where the original was) yet they still claimed that they had copyright 'on the image of the copy'. Really. It is nonsense. I wrote to the head of the institution and questioned this and never received a reply.

I have taken legal advice on all the above from a copyright lawyer so I feel fairly confident in saying that anyone showing a photo or postcard at a presentation is fairly safe. If it is on a free website it is very difficult for anyone to prove what material benefit there has been to the person showing it. If it is on a website that charges a fee for access, with Orphan works it is prudent to create a provision in case a claimant appears. Websites that monitor how many times a page or image is viewed can easily show what proportion of time was spent by visitors viewing a particular image as a per cent of total viewing so the provisioning is very simple.

Just some thoughts. As they say free advice is by definition worthless.

My only caveat is that ask 10 lawyers and you will get 10 different views. MG

[centurion]

But if the picture on the card is a government photo?

and if the card was reproduced in say 1960?

The image may be out of copyright but if you copy the card?

fraught with difficulties as they say.

[Guest]

But if the picture on the card is a government photo?

and if the card was reproduced in say 1960?

The image may be out of copyright but if you copy the card?

fraught with difficulties as they say.

Not really. It is very simple...

1. As Molesworth would say: any fule kno Crown Copyright is different.

2. Reproductions make no difference. Similar to books. it is the first edition date that counts. Subsequent editions and reprints make no difference. For example N&MP does not own copyright of the original material of many of the books that they reprint as evidenced by the lack of the word 'copyright'. So for example their reprint of The East Yorkshire Regiment in the Great War 1914-1918 by Everard Wyrall is not their copyright. They don't claim it. The book went ex-copyright in on 1st Jan 2004 (70 years after the last day of 1933, the year its author died). The N&MP might at a real stretch argue that the pages are images and claim copyright on the image but I doubt that would stand up in court. If you had an original copy published in 1928 and had it digitally scanned and ran it through OCR software and created a Word file and then used that to generate a PDF-A file you would have a digital facsimile copy of the original which can be word-searched. You could do this for hundreds of books that are ex-copyright and create a digital library. I have done this. 20 million searchable words. All thanks to our wonderful copyright laws and the fact that many Great War Authors popped their clogs before 1944.

3. If you copy the card (which is out of copyright) that is your copy and you can reproduce it a million times if you so choose. One of the reasons Art Galleries choose to ban cameras. I could take a photo of the Mona Lisa and sell it if I managed to get past the security. It is becoming more difficult to police with the advent of cameras on phones. This is only heading one way.

MG

[Kath]

Quote-"you can sell the postcard/print and show it in a presentation and show it on the internet."

Martin,

Thank you for answering my question.

Kath.

[centurion]

Not really. It is very simple...

1. As Molesworth would say: any fule kno Crown Copyright is different.

2. Reproductions make no difference. Similar to books. it is the first edition date that counts. Subsequent editions and reprints make no difference. For example N&MP does not own copyright of the original material of many of the books that they reprint as evidenced by the lack of the word 'copyright'. So for example their reprint of The East Yorkshire Regiment in the Great War 1914-1918 by Everard Wyrall is not their copyright. They don't claim it. The book went ex-copyright in on 1st Jan 2004 (70 years after the last day of 1933, the year its author died). The N&MP might at a real stretch argue that the pages are images and claim copyright on the image but I doubt that would stand up in court. If you had an original copy published in 1928 (I do) and had it digitally scanned (I have) and ran it through OCR software (I have) and created a Word file (I have) and then used that to generate a PDF-A file (I have) you would have a digital facsimile copy of the original (I do) which can be word-searched. You could do this for hundreds of books that are ex-copyright (I have) and create a digital library (I have). 20 million searchable words. All thanks to our wonderful copyright laws and the fact that many Great War Authors popped their clogs before 1944. If you want access PM me.

3. If you copy the card (which is out of copyright) that is your copy and you can reproduce it a million times if you so choose. One of the reasons Art Galleries choose to ban cameras. I could take a photo of the Mona Lisa and sell it if I managed to get past the security. It is becoming more difficult to police with the advent of cameras on phones. This is only heading one way.

MG

No it really isn't that simple, especially when it comes to making copies of photos in books

[Guest]

No it really isn't that simple, especially when it comes to making copies of photos in books

Cent

It should be. If the author expired before 1944 and the book was published before 1944 copyright has expired.

[David_Underdown]

Copyright in the photo may be held by someone other than the author of the text

[Guest]

If that is the case it should be acknowledged in the text. If not, all you have to do is demonstrate you have tried to find out. Write to the author and write to the publisher. If the publisher and author have obtained permission they will have the relevant details. If they don't have permission from a known copyright holder then they are in breach of copyright. If they have tried and failed to find the copyright owner then they are in exactly the same position as anyone else wanting to use the image.

One often sees in the acknowledgement section of books that the author has tried to establish copyright of material and a statement asking anyone who thinks their material has been used without permission to make contact. It happens very often.

They either

1. Know who the copyright holder is and have permission

2. Know who the copyright holder is and don't have permission.

3. Don't know who the copyright holder is but can demonstrate that they have tried to find out.

Scenario 2 is unilkely and a route I would not recommend pursuing.

[Moonraker]

.... 3. Don't know who the copyright holder is but can demonstrate that they have tried to find out ...

Or they don't know who the copyright holder is and can't be bothered to try to find out, or they don't know who the copyright holder is but realise that it's not worth trying to find out.

Both these cases apply to many of the postcards in my collection.

Moonraker

[Kath]

I'd like to use a picture in Devon Local Studies - O.K. - £50 a go!

They are suffering cuts (like Sheffield).

Kath.

[Guest]

Or they don't know who the copyright holder is and can't be bothered to try to find out, or they don't know who the copyright holder is but realise that it's not worth trying to find out.

Both these cases apply to many of the postcards in my collection.

Moonraker

I suspect the chances of anyone claiming copyright of a Great War period postcard and being able to prove it would be negligible. In theory someone producing a postcard in 1914 would be at least 120 today and probably a lot older..., so the vast majority would already have died decades ago. I really can't see many 1st and 2nd generation offspring of contemporary Great War postcard producers seeing any economic cost/benefit trying to claim copyright on a single postcard simply because it would be very difficult and disproportionately costly to prove. Lots of downside and negligible upside. I think the chances are so small as to be insignificant. Technically it is possible, but the probabilities would be extremely low unless one finds an archive of material with provenance.

I would be genuinely interested to hear of any case where someone (an individual rather than an archive) has claimed copyright of a Great war era postcard and has been able to prove it.

Books fall into a different category of risk. It is significantly easier to trace the publishers and authors and to establish the date of publication and date of death of the author. My interest is in Great War unit histories. Of the 284 unit histories in my library all but 23 were published before 1944 (70 years ago). Of the remaining 261 just 12 books were authored by people who died after 1944 and there are seven where I have not been able to trace the author as there are no records (some may have emigrated). So 12.3% are definitely still under copyright and a further 2.5% are unknown. The good news is that I know for sure (and have documentary evidence to support the fact) that there are 242 unit histories in my library where copyright has expired. Research is finding about 2-3 more each week. This is simply driven by the fact that most unit histories were written in the two post-War decades by older surviving officers or even older professional authors who nearly all died before 1944. The mode publication year was 1920 and two-thirds were written before 1930.

I strongly suspect (but cannot prove) that if I found the inheritors of the IPR of the other books most would not even be aware that they owned any copyright. I base this on researching a number of books written for Regimental Committees by professional authors. In five cases where the author was commissioned to write a history, he (it was usually a he) gave copyright to the Regimental Committe (now Regimental Trustees). Despite this transfer of rights, the same 70 years rules apply based on the date of publication and date of death of the author. I am in discussions with two sets of Regimental trustees on this very issue. One had no idea they might own copyright on a book that has not been published for decades and the other thinks they have copyright when they don't.

I suspect it would be very difficult to get similar levels of info on 250 postcards, so I sympathise with the concerns but I honestly think the risks are minuscule. Someone claiming copyright has to prove it and I suspect there simply is not enough provenance to build a case on a random photo or postcard in a collection.

I am not quite sure how one weighs the intellectual property rights of a 1,000 page history against a single postcard or photo. Republishing a book of unknown or untraceable authorship and republishing a single postcard would I think be weighed very differently in any dispute that reached a court. I think they are very different propositions.

MG

[Moonraker]

I suspect the chances of anyone claiming copyright of a Great War period postcard and being able to prove it would be negligible. In theory someone producing a postcard in 1914 would be at least 120 today and probably a lot older..., so the vast majority would already have died decades ago...

MG

But a surviving relative of someone who produced that card might still wish to see the copyright respected. This was the case when the grandson of a well-known WWI Wiltshire photographer took exception to anyone publishing copies of his postcards within 70 years of his ancestor's death.

Moonraker

[trajan]

I'd like to use a picture in Devon Local Studies - O.K. - £50 a go!

BUT

For what it's worth (and probably not much for 99% of GWF members!), the Russian Military archives in Moscow charge(d) USD 75 per map colour photograph done by their professional photographers, but that also gave FULL reproduction rights.

I now see that my Moscow plans were a real bargain...

Trajan

[Guest]

But a surviving relative of someone who produced that card might still wish to see the copyright respected. This was the case when the grandson of a well-known WWI Wiltshire photographer took exception to anyone publishing copies of his postcards within 70 years of his ancestor's death.

Moonraker

In this case the Grandson would be right because (I assume) he knew and could prove the provenance of the Postcard and the family still had the rights through inheritance.

[Moonraker]

The grandfather's name is on the cards and the grandson has the glass plates. Case proved, M'Lud!

Moonraker

[Guest]

The grandfather's name is on the cards and the grandson has the glass plates. Case proved, M'Lud!

Moonraker

QED.

[MaureenE]

I see there was an update to the website mentioned by the OP which says

Update: 8 May 2014

The Public Administration, Disability, and Research, Education, Libraries & Archives statutory instruments have now been approved by parliament and will come into force on 1 June 2014.

I assume this legislation is now in force

Cheers

Maureen

[CGM]

In the June Essex Record Office e-bulletin there is this :

Are you clear on copyright?

On 22 May two of our staff attended the Archive and Records Association Eastern Region’s Copyright Training day in Cambridge. This highlighted the veritable minefield that is the current copyright law along with a sobering real world example of just how badly it can go wrong when the correct background checks are not carried out by an Archive or the person wishing to use the copyright. We also took a look at the future and the various changes that will be entering the statute books later this year.

As the law stands, almost all unpublished manuscripts are in copyright until 2039 and things like photographs are in copyright until 70 years after the death of the photographer. There are real repercussions if copyright is breached. The Archivists at the ERO are here to help, so please come and talk to us.