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Use of 19th century newspaper articles in my book

Posted: Tue May 28, 2013 1:44 pm
by jpscribbla
Hello, I am writing a family history book which I'm hoping to sell. I'd like to include notices and announcements from old 19th century newspapers relevant to my story. I'm aware that images I find online would be the copyright of the website I found them on.

However, if I were to find such articles in the British Library from their original source and then photograph them myself would I be in breach of any copyright then?

If I copied out the said article/annoucement in freehand and then placed my own copy of it in my book but cited the original source, would that also be breaching any copyright?

This seems a bit of a minefield to me, I don't want to breach any copyright laws! Could you advise me on this please, many thanks.

Posted: Tue May 28, 2013 2:20 pm
by AndyJ
Hi Janet,
I think that anything published in the nineteenth century should be well out of copyright now. As you say, it is possible that any digital images of pages or articles may well be copyright, although if the scanning had been done purely mechanically (much in the way old newspapers were previously transferred to microfilm) then it is arguable that copyright would not apply because the process of digitization lacked any creative skill.
However since that would something a court might have decide, your suggestion of going to the source newspapers is a better work around.

You will need to check with the British Library staff at Colindale exactly what you will be able to gain access to. I suspect that since a large proportion of the archive has already been digitized, you may only be able to view the digitized images, which are owned by a commercial company called Brightsolid, who are working in partnership with the British Library. If that is the case, then their terms and conditions seem to rule out using these images for commercial purposes without a licence. As mentioned it is highly debatable whether they can legitimately claim copyright in this way, but since they control access, I think you may have to live with this.

Alternatively, if you are interested in local regional newsapapers, the relevant county record office or local public library may be able to assist.

Copying out by hand would certainly be acceptable because the original source is now out of copyright. Indeed there is nothing to stop you then putting the quoted words into a word processor and having selected a suitable font, reproducing the original article as closely as possible, to lend a little authenticity to your illustrations. As a family historian, I'm sure you will want to cite all your sources, and so doing this with any newspaper extracts will be both good practice and will also ensure that the moral rights of the authors are respected.

Posted: Tue May 28, 2013 3:31 pm
by jpscribbla
Thanks for replying so promptly Andy! Yes I fear you are right about the access to and use of images digitised by companies such as BrightSolid. I don't object to paying to view the images, fair enough, but it is a bit rich that they can claim copyright in that way and charge a 'licence' fee for their use. As you say, though, if they now control access it seems they have us over a barrel!

Re. copying out the article by hand, I'm glad you said that and I agree with your logic there! Yes, I am always careful about citing sources and attributing credit where it is due. I'll give the British Library a ring to check on whether we can still access the original paper records - I find the prospect of not being able to do so a little alarming :roll:

Thanks once again for your advice, much appreciated.


More on 19thC newspapers...

Posted: Thu Mar 05, 2015 12:07 pm
by Stevie
Hi, I've just found this thread and I've found it very useful. I also would like to develop an idea of publishing something commercially that would require quite a lot of info gleaned from 19th century newspapers. But, if I made transcripts (not copies) from the digitised versions, would this be an infringement of the copyright or not? I guess that there would be an electronic footprint of what I had viewed. Another point, I gather that electronic copies of 'out of copyright' material have a shorter copyright - 15 or 25 years, I'm finding conflicting info about this - so if I would use library/record office material that is normally stored on microfiche, are there any copyright issues there?

This situation is so maddening - it's our historical archive, but has been sold for profit and use is restricted, and the BL probably wouldn't allow free access to the papers!

Posted: Thu Mar 05, 2015 4:26 pm
by AndyJ
Hi Stevie,
The subject of copyright in digitized works is still hotly debated, and unfortunately the courts in the UK have not been asked to rule on the matter.

In my view a proper interpretation of the law (both UK and EU law) would hold that anything made by a mechanical copying process (Youtube video) such as that used to digitize old books and manuscripts, or to microfilm old newspapers, lacks the creative human element to qualify for copyright. If there is human involvement at all, it is generally that they place the source material on the scanner and press the 'go' button, and in terms of copyright law, that isn't sufficient to imbue the resulting copy with something of the personality of the author. Indeed it doesn't even meet the older UK yardstick of 'skill and judgement' by the 'author' of the new work.

On the other side of the argument are the companies who have invested heavily in joint projects to digitize archives and libraries. While there are a number of projects including GoogleBooks, Project Guttenberg and the Hathi Trust, whose motives are altruistic, there are several companies who are looking to monetise their investment, as are many of the archives, libraries and museums with whom they collaborate and whose collections are being digitized. Some of these organisations will claim or imply that their digitized collections are subject to copyright even though the original works are in the public domain, but they are probably wrong in law. However since they can control access to their stocks, they can effectively dictate the terms on which they allow copies to be made. So for instance the British Newspaper Archive (part of the Findmypast organisation and run in partnership with the British Library) charges a fee to view online content from their collection. However if you can go in person to either the BL in London or to their storage facility in Boston Spa, you can view the collection for free.

So turning to your specific problem, making transcripts (by which I take it you mean handwritten verbatim copying) of out-of-copyright works is entirely legal. It is also legal to copy the extracts you require by photocopying, photography (eg with a smartphone) or a handheld scanner, but all of these devices may well be banned by the particular institution which holds the item you are interested in.

Libraries, museums and archives are permitted to make copies of certain items (mainly books and periodicals etc, but can include dramatic and musical works too) on behalf of readers for the purposes of private study even when the works are in copyright, and this includes unpublished works. Readers are required to sign declaration about the use of the copies which are supplied to them. The Regulations have recently been amended to allow data-mining and other analytical processes to be performed on copyright works for the purpose of private study and non-commercial research. Naturally this pre-supposes the works have first been digitized. Of course none of those specific limitations should apply to works which are no longer in copyright, but in my experience many librarians don't have sufficient knowledge about this aspect and tend to apply the 'usual rules'.

I'm not sure where you found the reference to electronic (ie digital) copies only having a copyright term of 15 or 20 years, but I suspect someone is confusing this with something called 'publication right'. This right comes into being when a previously unpublished work is first legally published. By legally published, I mean with the authorisation of the copyright holder if this is appropriate. Publication right lasts for 25 years from the date of publication and belongs to the publisher. The reason this special right exists is because prior to the 1988 Copyright Designs and Patents Act, unpublished works were protected by a special common law provision that said that the copyright term would not commence until publication occurred. This meant that some works such as old letters and diaries were destined to remain forever unpublished because the author had long since died and it was impossible to trace his/her heirs to get permission to publish. The 1988 Act addressed the problem by saying that all unpublished works would henceforward have a fixed 50 term from 1 August 1989 (when the 1988 Act came into force). This means that works of this type will enter the public domain on 1 January 2040, unless they are lawfully published before then. However none of this would apply to works which had already been published, and had merely been digitized, for the reasons I outlined in my second paragraph.

So to summarise, I suspect that what you want to do is totally unaffected by copyright, and that the problems you face are ones of access, as set down by the various institutions you want to deal with. All of them, including government departments such as the General Record Office, and the county Records Offices, are acutely aware of the need not just to cover their costs, but actually make an operating profit, especially where they can charge fees from those who wish to commercially exploit the assets they hold.

Posted: Thu Mar 05, 2015 4:40 pm
by Stevie
Thank you so much for your detailed reply Andy, that is very helpful. With regards to access, if I don't tell them what I am proposing to do, I guess that they won't be able to stop me from viewing and making a written transcript!


Posted: Thu Mar 05, 2015 9:06 pm
by AndyJ
Hi stevie,
I probably didn't make myself clear earlier. If you are transcribing manually, you have no need for subtefuge, that would be both legal and also within the conditions of access to these sorts of institution. Indeed it would be perverse if they tried to stop you from doing so, given that the purpose of libraries etc is to encourage learning and the spread of knowledge! The sort of thing where you may face access restrictions is the use of technology such as hand-held scanners, smartphones etc. Even the BL has photocopiers, although you have to go through a good deal of bureaucracy to access them.

Posted: Sat Mar 07, 2015 10:34 am
by Stevie
Thanks for that Andy. One thing that I have come across in my copyright research is the principle of 'sweat and toil' that has been established in other countries for the creation of a digitised database. Under English law, foreign precedents can be used for a decision, though they're weaker than legislation and common law. The trouble is, I don't live in Britain, so use of the digitised editions would be ideal and would mean that I could start researching those straight away. I think that my only option is to have a trip home and use libraries at some point.

I don't feel that I can use the digitised editions, as I would need a lot of material and I'm sure that if they took legal action, they'd bring out the big guns. It's fine if you're an academic or have pots of money to pay for a licence, but if you're an ordinary person with a publishing idea and with limited means, you're stuffed. I can't run the risk of legal action; it would be great if I could afford a legal opinion before I start, but I can't. It makes my blood boil - it's taxpayer money that props up institutions like the British Library, and it's our heritage, and yet the system is weighted against ordinary people!

Posted: Sat Mar 07, 2015 12:06 pm
by AndyJ
Hi Stevie,
Assuming that we are still talking about newspapers, then I don't think database right is really an obstacle. UK law (based on the EU Database Directive 96/9) defines a database as:
[3A Databases

(1) In this Part “databaseâ€￾ means a collection of independent works, data or other materials which—
  • (a)are arranged in a systematic or methodical way, and

    (b) are individually accessible by electronic or other means.
(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.
The mass digitization of newspapers does not constitute 'selection' because every newspaper of a certain title or date is included assuming the print copy is available. Secondly the 'arrangement' is also automatically determined by the same two variables. The results of indexing which may be performed at the same time could well constitute a database, but as I understand it you are not seeking to copy the indexes, just the individual articles.

And even if I am wrong about that aspect, and a digitized newspaper archive does constitute a database, then it is only infringement of the database if all or a substantial part of the database is copied. Given the overall size of the archive, I suggest that copying a few articles would not constitute 'substantial'. However I haven't checked the terms and conditions of the British Newspaper Archive to see what they may say on the subject.
I agree with you that institutions such as the BL should not be charging rates which make this sort of venture uneconomic for a small business. Have you actually asked about their rates?
Incidently, the test under EU law for whether database right exists is that there has been substantial investment in obtaining, verifying or presenting tthe contents of the database. Investment means the application of financial, human or technical resources. What is more, database right ceases to exist after 15 years from the end of the year when the database was completed. However since most databases are being continually updated, this rarely applies.

Posted: Sat Mar 07, 2015 1:37 pm
by Stevie
Thanks so much Andy for your reply, that is very helpful! I have just two more questions:

- The quote about Databases, what is the name of the Act where that came from please?

- If I were to use microfilmed material in libraries, I think that those microfilmed copies were made donkey's years ago (I remember using them in the early 80s), so if that's so, any copyright that may have been slapped on those would now be expired?

Many thanks,

Posted: Sat Mar 07, 2015 5:44 pm
by AndyJ
Hi Stevie,
Sorry, I was in a bit of a rush this morning or I would have included the references. They are all to be found in the Copyright Designs and Patents Act 1988 as amended. Unfortunately since the references to databases are scattered throughout the Act, it might be easier to work from the Statutory Instrument which created the amendments to the CDPA, namely SI 1997/3032.
As for the microfilm, I don't think there can be any copyright in it because of the mechanical way the photographic copying was done, using a system similar to the book scanning I linked to in a previous posting. If copyright exists then it will be for the lifetime of the person who made the microcopies plus 70 years. A microfilm would not qualify as a database, because there was absolutely no use of the author's intellect to select or arrange the individual pieces of data on the film.

Posted: Sat Mar 07, 2015 7:02 pm
by Stevie
That's great, thank you for all your advice Andy. I now feel less disheartened and more optimistic!