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Reproduction fees even where there is no copyright?
Posted: Thu Jun 16, 2011 5:21 pm
I have contacted an image library to find out if certain images are still in copyright and if so, what the reproduction fees would be for a commercial venture.
I have just had a response - the images are out of copyright, but the library are now working out the cost of reproduction.
I'm somewhat confused by this as I thought that there aren't fees where there isn't copyright.
Or does the fact that the library has scanned them give them the right to charge the fees?
Advice and clarification would be most welcome!
Posted: Thu Jun 16, 2011 7:07 pm
Based on what you have told us, I think your assessment of the situation is correct: the fees are nothing to do with copyright but reflect the cost of reproducing the images. For an image to be out of copyright based on the normal term rules, it was obviously created before the digital age and therefore one assumes there will be some cost involved in scanning or using some other reprographic system. You don't mention the type of media involved, so it could even be that old photographs are held as negatives, and therefore first have to be printed onto photographic paper. If they are other kinds of artwork such a paintings or engravings clearly the original would need to be photographed or scanned in order for you to have a reproduction.
Therefore I would expect the fee they charge to commensurate with actual costs of the reproduction method. For example some time ago I purchased some microfiche copies of old parish registers, which were, I think, around £2.50 per sheet containing around 80 pages from the register. This seems a reasonabale sum for the intermediate work.
Be aware also that the library may claim copyright in the copies it has made. If the copying is done by largely mechanical means (as in the case of microfiche) then it is highly debatable whether this entails sufficient 'orginality' (ie human skill and labour) to qualify for copyright. So if something has been been stuck on a photocopier and all the human has done is pressed the button, that would not attract copyright. But on the other hand, a photograph of an old master might well entail sufficient skill on the part of the photographer in setting up the lighting, balancing the colour and correctly exposing the photograph to capture the full tonal range of the painting, such that it could well attract copyright as a separate work.
Posted: Thu Jun 16, 2011 7:46 pm
Many thanks for your reply, which is very helpful.
From what I can gather the image library (of a local city council) in question holds the original images (ie photographs) which are now out of copyright.
When I originally contacted the library I was told that the minimum repro fee would be between £50 and £100 per image, but that it would depend on whether or not the image was still in copyright.
I then sent them a list of images I was interested in and have just received the reply (ie that they are all out of copyright).
Should I therefore still be expecting fees as originally stated, given that all they have done is scanned them in?
Also, what's the situation regarding photos of old paintings that are held by image libraries? Presumably the photographer holds the copyright?
Posted: Thu Jun 16, 2011 11:39 pm
If the library holds the originals then I would expect their reproduction fees to be in the order of a couple of pounds or so for each print, but it's very much dependent on if they already hold digital copies - in which case there is virtually no cost in copying the files onto a CD - or if they have to get the prints scanned by a professional bureau where the cost might a bit higher, but they should not pass on the whole cost to you because they would also have the resulting digital files for future use.
As for photographs made of old paintings, as I explained in my previous post, this can cost a bit more if they get a specialist photographer in to do the work, and this work could well result in the photograph also having copyright. However I think it would be an abuse of their monopoly position as custodians of the local heritage if they wish to charge more than a few pounds for the combined reproduction fees and any copyright licence fee. Whilst the reproduction fee should be fixed, the copyright licence fee (if there is one) will most likely be based on what you want to use the images for. If you wish to publish them or somehow benefit financially from them, you may have to pay a larger copyright fee than if they are merely for your own private use or research.
If you are unhappy with any reproduction fees they propose to charge for access to what should be in effect public records, and therefore should be available for a reasonable charge, and the Council do not resolve your complaint, you can ask the Local Government Ombudsman
to adjudicate. For an appeal over unreasonable copyright fees, you can use the Copyright Tribunal
Posted: Fri Jun 17, 2011 6:28 am
Many thanks Andy.
I am now forearmed in case the library tries to impose unreasonable fees.
I'll be contacting other image libraries soon so I hope I don't have a problem with these; at least I know what to expect.
The project is commercial in nature so it's possible that the custodians are trying to cash in - or - they are acting in ignorance of the facts.
Posted: Fri Jun 17, 2011 10:47 am
As anticipated, the fees being quoted are unreasonable. Here's the response I've received:
I have discussed this with ***********, the History Centre Manager, and agreed with her that a reproduction fee of £30 per black and white image and £50 per colour image would be appropriate.
Oh dear, looks as though I need to put my diplomatic hat on...
Any hints as to how best to approach this?
Posted: Sat Jun 18, 2011 6:03 pm
Throwing out yet another query...
Someone has suggested to me that if an image library (or other such establishment) makes a copy of an original image (eg by scanning or photographing) then they hold the copyright for the copy in which case they can charge whatever they like to reproduce it (and obviously charge more if the use is for commercial purposes).
Any thoughts on this suggestion?
Posted: Sun Jun 19, 2011 8:41 am
If you re-read my earlier comments you will see that for any work to be eligible for copyright it needs to have originality: this means it originates from the skill, labour and creativity of a human mind. Any copying process that lacks sufficient human creative input (eg photocopying) would lack originiality so not be eligible for copyright. The most likely case where copyright might apply to a new copy would be that of the photograph of a painting. But even then this is not always the case (see the decision in Bridgeman Art Library v Corel Corp
in the USA).
So most forms of scanning and mechanical copying would not result in copyright in the copy. Even an artist who copies by re-painting an original painting may not always have copyright in his work if a court decides that there was no additional artistic skill involved.
Going back to your previous post, the sums they are asking for do seem very high. But as I do not know either what the originals are or what copying process is being used, it's hard to say what might be a fair price. The problem is that the gallery own the originals and so in theory they can charge what they like. However if I have understood you correctly, they are a local heritage archive under the auspices of the local council, so they are in effect holding these items in trust for the community, and are not a private commercial enterprise. On that basis they should be charging only what is reasonable to cover their costs for time and any outside assistance they may need. If you cannot get the staff to agree to lower the charges, take up the matter with their trustees or the council who funds them. If they are
funded by a local council, ultimately you can appeal to the Local Government Ombudsman, details of whom you can find in an earlier post.
Posted: Tue Jun 21, 2011 1:43 pm
I very much appreciate your advice and I apologise if you've had to reiterate info that you've already provided.
It looks as though I'm going to have to take the matter further as the reply I received when I queried the charges is far from satisfactory:
Most of the historical material in the History Centre is owned by ************** City Council but administered and cared for under a legal agreement by **************** Heritage and Arts Trust, a private registered charity. As with any owners of physical property, both of these bodies reserve an absolute right to control its use by others and to charge fees as they see fit. This is quite distinct from copyright which is a payment for the use of a person's intellectual property. The images are only in the public domain to the extent that the original creator no longer needs to be paid for his artistic contribution.
The basis for charging is that the material has been professionally cared for, conserved and catalogued over many decades so that it can be made available to our users, and the fee is a contribution towards the considerable cost of doing this. It is surely unarguable that had we not collected and looked after the material in the collections it is unlikely that the public would have any access to it and in most cases it would no longer exist. We do not actually charge extra fees to commercial users. The amounts I quoted are the standard rate, but where requests are received for permission to reproduce items from non-commercial users, e.g. private individuals, academic researchers and voluntary organisations such as local history groups, we offer concessions as we have every right to do.
I suspect that this will be the argument given by other council-owned image libraries. It's certainly one way for them to make money.
I will take up your suggestion of contacting the ombudsman and see where that takes us. Meanwhile, the project I'm involved in is getting further delayed which is a shame as it will directly benefit tourism in the city concerned and no doubt add to the council's coffers!