Photo copyright 1945 - 1957

'Is it legal', 'can I do this' type questions and discussions.
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AndyJ
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Re: Photo copyright 1945 - 1957

Post by AndyJ »

Hi Terry,

Yes, EU law (Directives and Regulations) stands above (or in the jargon, has Primacy over) the national laws of the member states for those areas where the EU has Competence* ie those subject areas which member states have agreed to vest in the EU through the various treaties. In the case of Directives, the meat of the document needs to be transposed into the statute law of the various member states, and in some areas each member state has some discretion about how or if to implement a specific provision, nationally.

The EU Term Directive was brought into UK law by the Duration of Copyright and Rights in Performances Regulations 1995 (SI 1995/3297), which in turn amended the Copyright Designs and Patents Act (CDPA) 1988. Although the UK has officially left the EU, until the end of the transition period, the EU law already embedded in our domestic statute laws, and any decisions of the Court of Justice of the European Union (CJEU) will continue to determine how copyright is handled here. We are not required to introduce any new EU law during the transition period, so for instance, the Digital Single Market Directive will not be implemented in the UK. As the CDPA and the various Statutory Instruments continue to form the UK law on the subject, the only thing which will change after we have completely left the EU is that we won't be bound to follow any decisions of the CJEU after 31 December 2020. There will be some minor rewording the the CDPA to reflect the fact that we are no longer a member and to remove references to certain things, such as cross-border portability of online content services or reciprocity in the protection of databases, but with respect to the past, no-one is currently contemplating using Parliamentary time for a wholesale revision of copyright law. More details from the Intellectual Property Office here

As for unpublished photographs, this poses something of a problem. The international agreements, such as Berne, all talk about published works when discussing the country of origin. If a work hasn't been published then, by default, the country of origin is the country in which it was made, and theoretically there is no international agreement that the term of protection should be anything other than the term specified by the law of that country of origin.

And with regard to your second to last question, I think that if you proceed in good faith, believing that the photographs you wish to use are out of copyright, I doubt that you will encounter any serious problems, and at most a fairly basic commercial fee might be demanded. Don't forget that if you wish to mitigate this risk, you can follow the orphan works licensing route which indemnifies you from liability, and for which you would pay a licence fee assessed by the IPO as fair and reasonable based on the normal marketplace (fairly modest in my experience).

As for the Spanish law on photographs in force in 1995, I don't know the details offhand and so I will do some research and let you know. I have a recollection that it was somewhat similar to the German law, in that it differentiated between 'simple' and more artistic photographs.

Afternote.
The operative Spanish law is the Ley 22/1987, de 11 de noviembre de Propiedad Intelectual. (Full version in Spanish here)
In Article 10 1. (h) "Photographic works and those expressed by a procedure analogous to photography" are listed as works subject to copyright. In Article 26 (Duration) the term of protection is given as "Article 26 The exploitation rights of the work will last the author's life and sixty years after his death or death declaration." There are then some further provisions concerning works which are first published after the author's death; in brief these state that the copyright shall last for 60 years from the date of publication.
Then Article 118 says this:
"For the protection of mere photographs
Article 118
Whoever takes a photograph or other reproduction obtained by a procedure analogous to that, when neither of them has the nature of works protected in book I, has the exclusive right to authorize their reproduction, distribution and public communication, in the same terms recognized in the present Law to the authors of photographic works. This right will have a duration of twenty-five years from the taking of the photograph."
All translations are by Google Translate as my Spanish isn't good enough. But I think it's fairly accurate.

I hope this helps you sort things out.


* If you follow the link to the EU's areas of competency, you may note that there is seemingly no mention of copyright or intellectual property matters. However the EU claims a degree of shared competancy in this area as a result of Article 118 of the Treaty on the Functioning of the European Union (TFEU) which says: "Article 118 In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements. The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament."
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tsrwright
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Re: Photo copyright 1945 - 1957

Post by tsrwright »

I like the term 'mere photograph'; anyone claiming breach of copyright on me will have to have very good Spanish.

Wonderful help.

Many thanks, Andy.
Terry
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AndyJ
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Re: Photo copyright 1945 - 1957

Post by AndyJ »

Hi Terry,

Yes I did check the phrase "las meras fotografías" carefully using a dictionary as I wanted to be sure this was a fair translation. I would be grateful to anyone who speaks Spanish rather better than I do who can provide a more nuanced translation. In any event, Article 118 provides absolutely no guidance on what might constitute a 'mere' photograph, legally speaking.

I hope you also noted the fact that an unpublished 'non-mere' photograph has a rather different copyright term to one which was published before the death of the photographer.
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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