Old photos/postcards

'Is it legal', 'can I do this' type questions and discussions.
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AndyJ
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Re: Old photos/postcards

Post by AndyJ »

Hi pilax,

I don't think there have been any test cases involving publication right, either in the UK or at the level of the Court of Justice of the EU (CJEU), so we can only speculate about where the onus of proof would lie. However, my instinct would be that it was up to a defendant to show that the work in question had previously been published. And what is more, the earlier publication would have had to have been done 'with authorisation' (see Regulation 16(3) of the Copyright and Related Rights Regulations 1996. The regulation goes on to explain that "In relation to a time when there is no copyright in the work, an unauthorised act means an act done without the consent of the owner of the physical medium in which the work is embodied or on which it is recorded."

As you indicate, proving a negative is very difficult, and so it would be a bit unfair to put the onus of the publisher! Nonetheless, I suspect that the court would want to hear some evidence from the publisher as to why they thought the photograph (or whatever kind of work) was previously unpublished, and how the publisher came by the work.
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pilax23
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Re: Old photos/postcards

Post by pilax23 »

Thanks for that. I just wonder if the defendant said that he copied the image from a website or a library book, would it not throw the onus back on the publisher to prove that that was impossible, ie. he had the original negative and some kind of proof from the photographer that it had never been previously used. If the original image had been around say for a hundred years it might be a very brave publisher who would take such a case to court.

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AndyJ
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Re: Old photos/postcards

Post by AndyJ »

Hi pilax,

By definition, any photograph which was subject to publication right would be fairly old because the period of copyright in it must have ended for the right to be applicable. This means that there could well be uncertainty about whether or not prior publication had occurred earlier in the period during the photograph's existence. The length of the period will, in most instances, mean that the original has been owned by more than one individual and so unless each such owner can be contacted and can say that no publication occurred during their respective period of ownership, it would be hard to provide satisfactory evidence that no prior publication had taken place. As you imply, there is a further complication in that the photographer could have made any number of prints made from a single negative. These prints could then all have separate owners, any one of whom might have published the photograph, either with or without the permission of the copyright owner*.

Clearly the person claiming publication right must have some reasonable ground for saying that there had been no prior publication, such as an affidavit from a previous owner of the physical work or an archivist who could aver that the work had only ever been in a private collection of the photographer, or some similar provenance.

On the other hand it would be a relatively simple matter for a defendant to show that prior publication had occurred, by producing in evidence that publication. In this context, a publication online might be problematic because of the difficulty in proving (a) when that publication took place and (b) that the prior publication was an authorised one as required by Regulation 16(3). To expand on what I mean about (a), let's assume that P claims to first publish the photograph in a book in 2010; to do this he must first arrange to have the photograph scanned in order for it to be printed. This requires physical access to the photograph. Another person D buys a copy of the book containing the image and scans the page of the book and puts the resulting image on D's website. D can change the creation date of his digital image so that it looks like it was created in, say, 2009. At first glance it would then appear to show that D had published the image before P's publication, and thus P's claim to publication right was invalid. The onus would then be on P to show that D's image had not in fact been published in 2009, or even if it had, the publication was not authorised per Reg 16(3).

Bear in mind that in civil cases the standard of proof is on the balance of probabilities, ie only slightly more likely than less likely to be the truth.

* Things get even more difficult if the photograph was one that had been commissioned prior to the 1956 Copyright Act because in that instance the person who commissioned the photograph would usually be the first owner of the copyright, and not the photographer (see section 5(1)(a) of the 1911 Copyright Act). For example Mr C commissions a photographer to take photographs at the 1913 wedding of C's daughter. One of the photographs is of the guests at the wedding. C owns the copyright and arranges for 30 copies of it to be made and given to family members who attended the wedding. He also sends a copy to the local newspaper to illustrate a news story about the wedding. This would be an authorised publication. Alternatively, later but while the photograph is still in copyright, C's sister S publishes a biography of her brother C, and includes a copy of the photograph in the book as it contains many of the family members. She does not seek C's permission because he is already dead. This would be an unauthorised publication, unless S had inherited C's copyright when he died.
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pilax23
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Re: Old photos/postcards

Post by pilax23 »

Thanks once again. Given all that you have said, it is perhaps not surprising that this hasn't been tested in the courts. Great website!

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AndyJ
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Re: Old photos/postcards

Post by AndyJ »

pilax23 wrote:
Thu Jul 23, 2020 6:17 am
Given all that you have said, it is perhaps not surprising that this hasn't been tested in the courts.
Yes. I have never seen a real life instance of anyone claiming this right, let alone litigating over it. There have probably been examples of the use of publication right but they have been portrayed as copyright.
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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