Page 1 of 1

Archive images

Posted: Mon Oct 24, 2016 5:55 pm
by Polly
A member of a small, self funded, enthusiastic and amateur Local History Archive Group, copyright law scares the life out of me. Up to now we've provided photocopies for educational use or for private research when a standard copyright declaration adapted from that of our local Record Office is signed and a donation requested to cover costs; however we're now being approached by various groups, businesses and authors who are interested in using material for cd's, display and in publications.
This would appear to offer a way of generating income to cover equipment, materials and displays, but we're very conscious of the fact that the amazing material we've been generously allowed to copy is not actually ours... a 'permission to use' or 'gift of records' form signed by donors requests any restrictions on use of material but few have any.
Having referred to Record Offices, searched online and accumulated piles of pages of Copyright information I'm still totally confused, and would appreciate any help... but please keep it simple! Cheers..

Posted: Mon Oct 24, 2016 8:22 pm
by AndyJ
Hi Polly,

The first thing to say is that old photographs (those made before 1 June 1957) fall into a special category where the same rules apply to both published and unpublished photographs, and this rule says that copyright lasts for 50 years from the end of the year in which the photograph was made. In other words anything which you hold which can be positively dated to having been made (ie the picture was taken) before 1 June 1957 can be freely used without infringing copyright.*

If you have signed permissions to use or gift of records forms, this presumably means that you have some idea of the actual owners of the images. If so, then they are the best people to contact for permission for any commercial exploitation. Of course the owner of an item such as an old photograph may not actually be the copyright owner, but if these are mainly personal photographs (as opposed to images published on old postcards or in books etc) then it would fairly likely that copyright will have been passed down by the process of inheritance and so the owner of the item will be in a position to give permission.

However I suspect that your problem lies in the fact that many of the donors are untraceable or anonymous. That is where the orphan works licensing scheme can be the solution. Either your group or the potential publishers of the images you hold can apply for orphan works licences for any material where the copyright owner is either untraceable or unknown. You can find full details of how the scheme works (it's been going for just under two years now) on the IPO website, and you will find the IPO staff will guide you through the diligent search and application process.

I hope this answers your question. If not please come back and we will try and help with more specific help.

* You may find that your local Records Office will not agree with this statement. This could be because they take their guidance on such matters from a book by Tim Padfield called Copyright for Archivists and Records Managers. The author asserts that in a number of cases, copyright in some photographs was revived by, ultimately, a European Union Directive issued in 1993, known as the Copyright Term Directive. Padfield and I disagree on this point, and the statutory references he provides to support his view simply do not bear the extent of revivals that he suggests. This is a very complicated argument so I won't elaborate it here. Suffice it to say that if Padfield is right and I am wrong, then some photographs by known authors may have had their copyright revived if the authors died after 1 Jan 1946 ie less than 70 years before the start of the current year, in circumstances where the photographs were protected under the copyright law of another member state of the European Economic Area on 1 July 1995.

Posted: Tue Oct 25, 2016 9:31 am
by Polly
Thank you Andy, for your swift response. Yes Tim Padfield was referred to by the Hants Record Office where we did a little basic training. It's never occurred to me that he could be challenged!
To confuse the matter more I have it in my head that copyright starts again if material is you know if that's correct? I wouldn't have made it up...
Up to now we've erred on the side of caution with an 'educational or private research only' ruling and avoided posting on the internet but it's become clear that if possible we need to expand this.
'Orphan works' is new to me; I was hoping for a blanket rule as we couldn't afford to apply for individual items.
Oh dear, it all seemed such a good idea when we formed seven years ago!
Thanks anyway, you've given me something more to think about...

Posted: Tue Oct 25, 2016 4:47 pm
by AndyJ
Hi again Polly,

You are right about the publication right. You can find details about this in Regulation 16 of the Copyright and Related Rights Regulations 1996 (SI 1996/2967). This Publication Right (not to be confused with the right to issue copies to the public, something which is often referred to as the publication right, which is a right that only a copyright holder may exercise) only lasts for 25 years from the end of the year of first publication. However if your group is the legal owner of the work (or you are acting with the permission of the legal owner) then this Regulation per se does not prevent you from licensing someone else to publish a previously unpublished work. You can prevent publication by virtue of denying lawful access to the work, so that an intending publisher cannot copy it. Hypothetically if you supplied a copy of an unpublished photograph to a person under the private study exception, and that person went on to publish the photograph, they would not be entitled to the publication right because the act by which they acquired the photograph (the Section 29 exception) would no longer be lawful.

As for the orphan works licensing system, you can group a number items together within a single application which helps to keep the costs down, or better still, get the person who wishes to publish the photograph to take out the licence. The licence is valid for 7 years, unless of course the actual copyright owner comes forward in the meantime. However the existence of an orphan works licence would remove the licensee's liability for copyright infringement, should this happen. It is not entirely clear what would happen to the validity of the Publication Right in a case where a person found an unpublished work, obtained an orphan works licence for it, published the work and duly became the holder of the Publication Right, then to have the actual copyright owner come forward and effectively void the orphan works licence.

Posted: Tue Oct 25, 2016 6:29 pm
by Polly
Again, many thanks Andy

It would be interesting to see how the suggestion of the person making the request paying a 'licence fee' might be received...

Thank you for explaining Publications Right, I must've been paying attention when that was mentioned but got the name wrong. As the speaker commented that Copyright is a minefield and that she sometimes had to seek clarification herself, I fear the best we can do is to be seen to be trying to get it right.

I'll make this correspondence, along with copies of the relevant pieces you've mentioned, available in the Group to assist with future requests. Still confusing to a mere retired dinner lady, but I'm not a bad cook.