At what point does access constitute publication?

'Is it legal', 'can I do this' type questions and discussions.
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cannonking
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At what point does access constitute publication?

Post by cannonking »

One more query, if you'd be so kind. This one a little more related to my usual sort of question. T

To briefly recap, any unpublished gray material was held to be indefinitely subject to copyright until 1989; when the 2039 rule came in. I know from my own work, and a question or two on this forum, that who owns the copyright to historical correspondence/letters is often a tangled web of inheritances and wills, and most people aren't even aware that they own it. That's the legal situation as things stand as far as I'm aware (I don't think anything changed after the 2015 review to affect this - please correct if wrong).

Now as a historian by trade, I've built up a large collection of unpublished correspondence. I typically feed a photograph of a letter into my own private research database, where I then transcribe the letter for easy reading, file it appropriately, and add useful consistent metadata tags for search flexibility. Make no mistake, I started doing this for my own research, I still do it for my own research, and will continue to do it for my own research. I use an off the shelf note-taking software called Evernote. My private research database is therefore not just on my computer. It's also cloud based, which means that I can give or withdraw access for any part of it to any designated email address. I just make the link accessible, and suddenly, there's a functional URL which can be accessed by someone from the designated email address. I am certain that this is all quite legal right now, as it is used for private research purposes and I do not currently share the material I have stored despite having the full capacity to do so.

Now then. I am beginning to wonder whether or not there is a way to slightly monetise my hard work in processing and making useful these letters (many tens of thousands of private hours work) without having to wait until 2039 or breaching copyright. I am not the first to try and do this. If you look at the Winston Churchill correspondence archive online, they do a very similar thing in collaboration with the holding archive. In their instance, they chose to try and get copyright permission from as many people as they could trace, and then ignore the rest (the vast majority) and hope that they didn't get sued. There is an address on the website you can use to contact them if you believe you hold a copyright that they're infringing. But generally speaking, they are running a commercially available database where you can access material still in copyright and belonging to other people. I could name two or three other organisations who do the same thing (the Royal Society of Chemistry for example), the Churchill lot are not alone in this.

I do not like their approach. It seems to me needlessly risky, especially when dealing with the copyright of many important and wealthy people from anything up to seventy years ago. If it was just an archive putting up a few letters on their website nobody would care, but when a commercial entity starts charging subscription access, that's clear grounds for legal action. I, as a historian by trade, do not particularly want to set up a commercial entity to deal with this sort of thing, or to spend hundreds of hours of my life trying to trace the nth relative of someone who died a hundred years ago, only then to ignore it and still be legally vulnerable. I pretty much just want to let select other people have access to the hard work I've done, whilst simultaenously making a few quid on the side to fund my continued research work. It would also really help most other historians in my field out and save them research time.


Getting to the meat of the question, the database is also not my only project, I'm also digitising out of copyright materials (magazines, etc) from the 19th century and putting them on a separate website which I own and pay for hosting on. I'm consequently considering opening up a Patreon or Ko-Fi account to let people support my digitisation work generally. So my question is this. If I offered to let people who support my wider work through such a platform also have access to a URL with my private research database on, is this publication or some other form of infringement?

As stated, the letters are historical (not one under 107 years old). The subscription to my Patreon/Ko-Fi would be explicitly labelled as supporting my wider work of digitisation. It would also be explicitly stated that any access to my private research database was not a purchase or a commercial service, that they had no right to continued access, and that it could be withdrawn at any time with no justification. I'm just effectively letting them see what I've worked/am working on in my own private research database. The URL is not publicly available, and would only be viewable/usable by people I choose to manually give access to (aka, those who support my wider work through a Patreon/Ko-Fi subscription).

Would this be legal, or would it still count as publishing a work currently in copyright? I suspect it still counts, but would like to check.
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AndyJ
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Re: At what point does access constitute publication?

Post by AndyJ »

Hi CannonKing,

You have summarised the current position with unpublished works which came into existence before 1 August 1989 pretty well. The exception you are correctly relying on for private study and research does not preclude you from publishing your collection provided that this is done for non-commercial purposes. However the moment you cross the line into what is deemed to be commercial you lose all of the protection from an infringement claim for what you have published commercially, meaning that theoretically at least you would need to remove such material from your paper and cloud records. So clearly everything hangs on what is meant by commerical. Let's take two examples. If you published your work along with a number of facsimiles of the original letters in a journal but you were not paid for the article that would be non-commercial even if the magazine itself was a commercial enterprise and sold advertising on its pages. However, if instead you collected together a number of letters and published them in a book and only sold the book at a non-profit price which only covered your costs, that would be commercial. Sadly I think that using Patreon etc for the purpose would make this commercial publishing simply because somebody paying a subscription would be doing so just in order to gain access to the copyright works, and you would be directly benefitting from that subscription after Patreon had taken its share.

The problem with this issue and the perfectly reasonable case for sorting out this anomaly is that it is a problem which largely only affects a minority of mostly academics such as yourself who lack the political clout necessary to get the law changed. An amendment was propsed at the time of the 2016 Enterprise Act, but it failed to gain support. At least one person claimed at the time that it was not really a problem because the first option - publication without a fee in a magazine - was always available to an academic who was already being paid to carry out research, for instance by a university. Clearly they did not have freelance authors or researchers in mind when this was said.

The EU have also addressed the issue from the perspective that most of these items are orphan works, that is to say while we may know the identity of the author, but we have no real way of tracing the current owner of the copyright. The EU's solution was the Orphan Works Directive which allowed institutions such libraries, archives and museums to digitze and make available such works which they held in ther collections, after conducting a dilligent search to find the current copyright owner. The UK adopted that Directive in 2014 and also introduced its own separate version of orphan works licensing which was available to private individuals or indeed companies. This UK system is, of course, available to you, but as each work would require its own licence, the cost and administrative load involved in licensing all of your collection might well make this impractical.

Sorry I can't provide anything more positive in this.
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cannonking
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Re: At what point does access constitute publication?

Post by cannonking »

Just to query a point or two (if you don't mind, I accept that I've presumed considerably on your time in the last 24 hours and am extremely grateful regardless).

-At what stage do I count as 'publishing' the material? Does the fact that it's my own research database and in active use as such and primarily utilised for such and not generally open to the public not preclude it being 'publishing'? Or is something just considered published the minute that it's available to more than one person on the internet?

-You appear to imply that the exception I use for processing this material personally would also exempt it from infringement if published, aka for non-commercial/academic use. So if I simply made a general link to my database publicly available for general research use (as I do with my out-of-copyright scans) would that not infringe? If it doesn't, would it then suddenly infringe if I maintain a Patreon on a separate site for supporting my work more generally? Or it would the two be considered separate? I'd be happy to do it that way round instead if so, as my primary interest is not getting sued more than it is making money.

-Let's assume that I chose to go the same route as the Churchill Archive. Their website states:-
The physical Papers are held in the Churchill Archives Centre at Churchill College, Cambridge, where they are made freely available for consultation by researchers and visitors to the Centre. The Trust is a charitable body which administers the Papers (held by the Trust in perpetuity) on behalf of the nation. However, many items are still in copyright and in such cases the copyright remains the property of the writer, the writer's employer or their successors, and we have undertaken a process to obtain publication consent from as many copyright holders as possible.

For a list of those who have given consent of copyright, please click here.

Despite our best efforts, we have been unable to make contact with all copyright holders and we are still seeking to make contact with those listed here.

We also have a take-down policy for situations where a copyright holder who we have not been able to trace or make contact with comes forward and requests that material in their copyright is removed from the site. If you believe you are a copyright holder and don’t believe you have received any of our permission requests, please email us at churchillarchiverights@bloomsbury.com.-
Does this in any way that I do not perceive shield them from copyright claims in a way that I could emulate? Is it really the case that Bloomsbury is just taking an active risk of a lawsuit in the belief no-one would bother going beyond C&D? If the latter is the case, do you informally consider this a wise behaviour and something I could perhaps feel safe in copying? (I am aware you are not my lawyer and this is not legal advice).
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Re: At what point does access constitute publication?

Post by AndyJ »

Hi ck,

In the copyright sense, publication is generally defined as issuing copies of a work to the public in a way that satisfies the reasonable requirements of that public. Breaking that down, issuing a single copy would not amount to publication and making the original work available for the public to view in a glass case in museum would also not be publication. The requirement to satisfy the public's requirements is trickier. If the 'public' who wish to have access to the letters you hold consist of a few dozen people and you allow any or all them to access your scanned copies, that would meet the satisfaction requirement, even though the greater public would not necessarily have been granted access. Contrast this with the situation in which advance copies of a book are sent to reviewers before the book is issued more generally to the public; that does not constitute publication because it does not meet the satisfaction standard. Similarly, if an author circulates the contents of a manuscript to a close circle of friends under an implied obligation of confidence (as occurred in the Prince Charles case of 2006) that also does not amount to publcaition. From this you can see that private letters fall into a special category, in that in most cases they are not written with the intention that they will ever be published. This actually goes back to the old, pre-1911, concept of common law copyright which viewed any work as the incorporeal property of its author over which he had the right to decide whether or not to publish. It was his private property with the overtone of being confidential in nature. This led to the situation where an unpublished work was protected by perpetual copyright, until an authorised* publication occurred. Thus anyone who broke that confidence by making the work available without the owner's permission was guilty of a tort similar to breach of confidence. On the other hand if the author chose to publish the work he was deemded to have given up all such rights. The first modern copyright act in 1911 did away with the common law copyright and replaced it with the statutory rights which we recognise today. However until the 1988 Copyright Designs and Patents Act 1988, the old common law copyright still applied to works created before 1912 (ie when the 1911 Act came into force). It was not until the 1988 Act that all works by an author, whether published or unpublished, came to be given the same term of protection based on the author's life plus an number of years after his or her death. A special provision was made for the unpublished pre-1912 works whereby they would come out of copyright fifty years after the Act came into force. The fifty years was later changed to seventy years, which is where the 2039 date comes from.

Your next point concerned whether a subscription via Patreon could be seen as giving general access to your full archive and thus would not amount to commercial publication of the specific letters. I don't think this argument would work. It is similar to how the incidental inclusion exception works; if someone deliberately includes a copyright work in a film or a video which they could have edited out or ensured was not in shot before starting the shoot, that does not qualify as incidental inclusion. So in your case you would need to take steps to isolate the copyright works from being accessed by the public who otherwise had access to your archive via a Patreon subscription.

Turning to the Churchill College Archive, they are able to take advantage of the EU Directive on orphan works because they fall within the definition of an institution which has special authority to deal with orphan works:
... publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, in order to achieve aims related to their public-interest missions.
(Article 1 of the EU Directive 2012/29 on certain permitted uses of orphan works)
So to that extent they are not taking the same legal risk as you would be doing, even though I acknowledge that the risk to you is very small, and it would probably be sufficent for you to add a similar notice to copyright holders to avoid any serious litigation.

* It is not a coincidence that the words author and authorization derive from the same stem, the Latin word auctor.
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cannonking
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Re: At what point does access constitute publication?

Post by cannonking »

In the copyright sense, publication is generally defined as issuing copies of a work to the public in a way that satisfies the reasonable requirements of that public.... A special provision was made for the unpublished pre-1912 works whereby they would come out of copyright fifty years after the Act came into force. The fifty years was later changed to seventy years, which is where the 2039 date comes from.
This is all really interesting. I'm really clued up on pre-1914 patent law due to it crossing my historical path, but ignorant about some of the wider stuff. So thanks for the contextual info!
Your next point concerned whether a subscription via Patreon could be seen as giving general access to your full archive and thus would not amount to commercial publication of the specific letters. I don't think this argument would work. It is similar to how the incidental inclusion exception works; if someone deliberately includes a copyright work in a film or a video which they could have edited out or ensured was not in shot before starting the shoot, that does not qualify as incidental inclusion. So in your case you would need to take steps to isolate the copyright works from being accessed by the public who otherwise had access to your archive via a Patreon subscription.
I'm not sure I've been clear here (or perhaps I'm just not comprehending your answer correctly). Please allow me to restate and just copy paste your answer if it still applies! The scenario which I'm envisioning is one whereby I have an individual personal website, which has a link for the correspondence database and all my other digitised work. It's all free, it's all generally available, and it's specified on the website that this is for research purposes and non-commercial. However, there is also a link to another website (Patreon/Ko-Fi) there which says on the page there 'If you like what I do, feel free to chuck me some money or a subscription to help support my ongoing work'.

Your original answer implied this was legal, whilst your answer above does not. So I'm a little confused!
Turning to the Churchill College Archive, they are able to take advantage of the EU Directive on orphan works because they fall within the definition of an institution which has special authority to deal with orphan works:

... publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, in order to achieve aims related to their public-interest missions.
(Article 1 of the EU Directive 2012/29 on certain permitted uses of orphan works)

So to that extent they are not taking the same legal risk as you would be doing, even though I acknowledge that the risk to you is very small, and it would probably be sufficent for you to add a similar notice to copyright holders to avoid any serious litigation.
This one I find most interesting of all. Are you saying that organisations with the mandate described above (and their partners like Bloomberg, clearly) do not have to individually register and pay for utilising orphan works in the same fashion as a commercial organisation/private individual?

A quick skim of the named legislation implies that they are responsible for undertaking a search for rights holders and maintaining records for such, but otherwise get to name orphan works as such without recourse to national government. Section 8, 9, etc, implies that they stand outside the usual framework, and 21/22 seems to make the usage of commercial partners in such endeavours legal.

If so, I have another project I've been meaning to discuss with the National Archives that this could have large ramifications for.
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Re: At what point does access constitute publication?

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cannonking wrote: Tue Jan 19, 2021 11:32 am
I'm not sure I've been clear here (or perhaps I'm just not comprehending your answer correctly). Please allow me to restate and just copy paste your answer if it still applies! The scenario which I'm envisioning is one whereby I have an individual personal website, which has a link for the correspondence database and all my other digitised work. It's all free, it's all generally available, and it's specified on the website that this is for research purposes and non-commercial. However, there is also a link to another website (Patreon/Ko-Fi) there which says on the page there 'If you like what I do, feel free to chuck me some money or a subscription to help support my ongoing work'.

Your original answer implied this was legal, whilst your answer above does not. So I'm a little confused!
If you make the Patreon subscription voluntary and you aren't putting any restriction on people entering your site where the material is available, then I think that probably puts enough distance between the copyright material itself and any commercial overtones. And yes the material available on your site would fall within the private study / research exception under those circumstances but you should make it clear that no-one may use your archive for commercial purposes. Technically speaking if someone commercially published your scans without your knowledge, this could invalidate the exception for you as well. The wording of section 29 is ambiguous on that point. However I think that the wording in section 29A subsections (2) to (4) lends weight to my conclusion on this, even though they refer to text and data mining rather than conventional research.
cannonking wrote: Tue Jan 19, 2021 11:32 am
Turning to the Churchill College Archive, they are able to take advantage of the EU Directive on orphan works because they fall within the definition of an institution which has special authority to deal with orphan works:

... publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, in order to achieve aims related to their public-interest missions.
(Article 1 of the EU Directive 2012/29 on certain permitted uses of orphan works)

So to that extent they are not taking the same legal risk as you would be doing, even though I acknowledge that the risk to you is very small, and it would probably be sufficent for you to add a similar notice to copyright holders to avoid any serious litigation.
This one I find most interesting of all. Are you saying that organisations with the mandate described above (and their partners like Bloomberg, clearly) do not have to individually register and pay for utilising orphan works in the same fashion as a commercial organisation/private individual?

If so, I have another project I've been meaning to discuss with the National Archives that this could have large ramifications for.
The EU and UK orphan works systems are entirely separate although the EU system operated within the UK up to the 31 December 2020. So yes institutions empowered under the EU system did not have to pay for licences, but they did need to set aside a fund in order to pay an appropriate licence fee to any legitimate copyright owner who comes forward after the work has been made available to the public. There was no prohibition on the institutions having commercial partners (Article 6(4)), but they weren't allowed to charge the public to access the digitized works, other than to cover their genuine administrative costs (Article 6(2)). This right has been removed as of 1 Jan 2012, and in theory at least any works which were previously made available under this right could now leave British institutions vulnerable to infringement actions. However, I suspect that many of them will either take that risk, or will take advantage of the UK system to register the orphan works. I am not aware of any moves to offer such institutions a simpler application system for works already digitized under the old EU system. Unfortunately the EUIPO have already removed all UK registrations for institutional orphan works from their database so I can't say how many works are likely to be affected by this change.

With the UK scheme, potential licensees of orphan works are required to pay an administrative fee (there's a sliding scale depending on how many works are included in each application) and once the application has been approved the IPO then calculate a licence fee which has to be paid and is held in trust for any prospective copyright owners, This fee is based on current market rates for comparable material. I imagine that for works like the letters you are concerned with, the fees will be purely nominal amounts. You can ask for advice from the IPO staff in advance of making an application.

Obviously the withdrawal of the EU Directive will impact upon the work of the National Archives and so it may also affect your project.
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cannonking
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Re: At what point does access constitute publication?

Post by cannonking »

Thank you for all your advice. I'm sure the British Library and National Archives have legal staff on hand with which I can now fine tune my alternative project (which I won't bore you with here). It's nice to know that I can whack up my personal correspondence archive for free without risk of being sued though. Much obliged to you, and I hope you have a good week.
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