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A few copyright questions - ownership and copying

 
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Pob
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PostPosted: Thu Oct 24, 2013 3:44 am    Post subject: A few copyright questions - ownership and copying Reply with quote

Hi there, I was wondering if anyone could advise on the following professional issues -

-If a researcher in a library wants to copy an unpublished letter written in 1925, is this ok? The author is unknown, and the person it was sent to is deceased. As far as I know, the copy is needed for private study and not for commercial reasons or to be published.

-Ordnance survey maps from the 1950's - can these be copied for exhibition purposes?

-Is it ok to copy a page from a published book showing survey results and text for an academic who is not planning on reproducing them or using them for teaching purposes?

-Is it ok to use historic photographs taken by a deceased photographer in a workplace presentation (probably powerpoint with accompanying hand-outs)?

Any guidance would be a big help. Thanks!
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AndyJ
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PostPosted: Thu Oct 24, 2013 8:36 am    Post subject: Reply with quote

Hi Pob,
Thanks for the questions, for which, happily, there are fairly straightforward, albeit long, answers.

1. An unpublished letter created before 1 August 1989 (when the current copyright law, the Copyright Designs and Patents Act (CDPA) 1988, came into effect) remains subject to copyright until 31 December 2039. This is the case whether or not the identity of the author is known. In the current jargon, a work whose author is either unknown or cannot be located, is called an orphan work. Incidentally, new legislation is currently being drafted to deal with how access to orphan works can be improved through a licensing scheme. However in this case, since a copy is required for private study or non-commercial research, and the original work is held in a library or archive, Section 43 CDPA applies:
Quote:
43 Copying by librarians or archivists: certain unpublished works.
(1) The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make and supply a copy of the whole or part of a literary, dramatic or musical work from a document in the library or archive without infringing any copyright in the work or any illustrations accompanying it.
(2) This section does not apply if—
    (a) the work had been published before the document was deposited in the library or archive, or
    (b) the copyright owner has prohibited copying of the work,
    and at the time the copy is made the librarian or archivist making it is, or ought to be, aware of that fact.

(3) The prescribed conditions shall include the following—
    (a) that copies are supplied only to persons satisfying the librarian or archivist that they require them for the purposes of—
      (i) research for a non-commercial purpose, or
      (ii) private study,

    and will not use them for any other purpose;
    (b) that no person is furnished with more than one copy of the same material; and
    (c) that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library or archive) attributable to their production.
The term prescribed library covers any public or school library which is run on a non-profit basis, along with several other institutions such as publicly owned museums or archives. Full details can be found in the Copyright (Librarians and Archivists)(Copying of Copyright Material) Regulations 1989 (SI 1989/1212).

2. Ordnance survey maps are subject to Crown Copyright, the duration of which, for published works, is 50 years from the end of the year in which it was published. Unpublished Crown Copyright works remain in copyright for 125 years. It is worth noting that as part of the move to more open government, a great many modern government publications are covered by the Open Government Licence. So, if the Ordnance Survey map was published before 1963 it is now in the public domain. However for a map published shortly after that cut-off date, it should be reasonably simple to obtain permission to make a copy of it, if it is for non-commercial purposes.

3. Copying part of a published work such as a book or magazine held in a library or archive for private study or non-commercial purposes is also covered by the Regulations referred to above. So long as the academic provides a simple declaration (the format of which is in the Regulations) then a librarian or archivist may legally make a copy of part of the work.

4. This is the least straightforward of the questions to answer. To ascertain the copyright status of the photographs, it is necessary to know:
    a. when they were taken
    b. if they were ever published and
    c. when the photographer died.
Simply put, if they were made before 1 June 1957 and published, the photographs are now in the public domain. If they were made before 1 June 1957 and unpublished, they remain in copyright until 31 December 2039 (as for the letters referred to earlier), and if they were made after 31 May 1957 they are subject to copyright during the photographer's lifetime plus 70 years. This applies whether or not they were published, and irrespective of whether the copyright was actually owned by the photographer or by the company he may have worked for when he took the photographs. Obviously if the photographs are now in the public domain there is no problem with using them in a presentation. However if they appear to be still in copyright, I think that using them in a presentation of the sort you describe would be infringement on two levels. Firstly the photographs need to be copied or scanned to get them into digital form for powerpoint or printing and this would be contrary to section 17 CDPA, and secondly, showing them to an audience of this sort would be contrary to section 19 of the CDPA:
Quote:
19 Infringement by performance, showing or playing of work in public.
(1) The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.
(2) In this Part “performance”, in relation to a work—
    (a) includes delivery in the case of lectures, addresses, speeches and sermons, and
    (b) in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work.
(3) The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast.

(4) Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.
It is slightly debatable whether workplace colleagues constitute 'the public' but since there would be infringement under s 17, it is slightly academic whether there would also be infringement under s 19.

Incidentally if you are a librarian or archivist, I can thoroughly recommend a book entitled Copyright for Archivists and Record Managers by Tim Padfield (Facet Publishing)(ISBN 978-1-85604-705-0). It deals with exactly these sorts of cases in great detail.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Pob
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PostPosted: Fri Oct 25, 2013 1:37 pm    Post subject: Reply with quote

Thank you so much, that's hugely helpful. I've just ordered a copy of the Padfield book and I'm sure it will be very useful.
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Pob
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PostPosted: Fri Oct 25, 2013 5:40 pm    Post subject: Reply with quote

Sorry, could I ask another question (while I'm waiting for the book to arrive!)

If a researcher in an archive wants to get a copy of an unpublished map is this ok? The creator of the map died in 1943.

I think it counts as a literary work (correct me if I'm wrong) so copyright should expire on 31 December 2039? In which case, would the researcher be allowed a copy, providing they sign a copyright declaration and they want it for non-commercial research?

Maps seem a bit tricky, as they seem to count as literary or non-literary works depending on when they were created, right?
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AndyJ
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PostPosted: Sat Oct 26, 2013 2:12 pm    Post subject: Reply with quote

Hi Pob,
I have to say I groaned silently to myself when I saw your supplementary question. It is hard to think of a more complicated set of circumstances! You are absolutely right that over the past 150 years, maps have indeed been classed as both literary works and later as artistic works, which is how they are currently defined in Section 4(2) of the current legislation:
Quote:
(2)In this Part—
“building” includes any fixed structure, and a part of a building or fixed structure;
“graphic work” includes—
(a) any painting, drawing, diagram, map, chart or plan, [...]
Indeed maps can also be compilations (which are literary works) and engravings, which are another special class of artistic works with complicated rules similar to early photographs. The reason this last point is significant is that where portraits, photographs and engravings created prior to the 1956 Act were specifically commissioned, the person who commissioned them became the first owner of the copyright. It might well be that such a commissioned work would also remain unpublished, thus further complicating the issue. So much for the background. The key facts here are:
a. The work was created before 1 June 1957 so, as defined by Section 35 of the 1911 Act, it was at the time of creation, a literary work,
b. The work has never been published.
c. The original work is now held in an archive, library or similar place which it can be presumed is a prescribed library (as referred to in my previous post).
Additional Assumptions.
a. The map was not the result of a commissioned engraving (which would include an engraved printing plate).
b. The map was not created under conditions which would have made it subject to Crown Copyright.
c. The map is not a non-print work deposited with a deposit library under the terms of the Legal Deposit Libraries Act 2003, or earlier Acts.

From those facts and assumptions, we can adduce the following:
a. Schedule 8 of the 1956 Copyright Act stated that the definitions contained in the 1956 Act (which say that maps are artistic works) were to replace the earlier classifications for works made prior to the coming into force of the 1956 Act. This means that the map should now to be treated as an artistic work, irrespective of what the 1911 Act says..

b. As the map was in copyright (by virtue of not having been published) when the 1956 Act came into force, Section 3 subsections (1) and (4) take effect. These say that unpublished artistic works (other than unpublished engravings and photographs) would now be protected by copyright for 50 years from the end of the year in which the author died, that is, the same term as for published works. This term was later extended to 70 years post mortem by the 1995 Duration of Copyright and Rights in Performance Regulations (SI 1995/3297). On this basis, for an author who died in 1943, copyright in their works will end on 31 December 2013, that is, a little over two months time.

c. This is just as well because although the map is held in a prescribed library, a copy cannot made for the academic because Section 43, to which I referred in my previous post, specifically excludes artistic works from the categories which may be copied.


Enjoy your new book. I'm sure you will find it most accessible for queries of this kind.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Pob
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PostPosted: Sun Oct 27, 2013 5:23 pm    Post subject: Reply with quote

Blimey! Not much seems to be straightforward in copyright law. Thanks so much for your help :)
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