History project

'Is it legal', 'can I do this' type questions and discussions.
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JonBol
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History project

Post by JonBol »

I am pulling together a history research project which I want to make available on a non-commercial basis as follows:
- hard copy at the local museum
- as a download from an online history group forum on Facebook
- by email on request
There are various copyright implications but here for now I would like advice on newspaper articles and newspaper photos dating from 1946-1981. Let's assume all the articles are unnamed and all from local newspapers. What can I include without specific permission from the copyright holder, which I would take to be the newspaper or its successor if it was taken over?
By making available online by download, would it still be classed as publishing?
Are the rules less strict if sharing is on a non-commercial basis?
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AndyJ
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Re: History project

Post by AndyJ »

Hi JonBol,

I think you already know that due to their age, the articles and photographs etc you are interested in will all still be in copyright, so you are right to be cautious. And yes, assume that the newspaper's publisher is the copyright owner.

You should be able to copy a fair proportion of the articles and photographs under the exception of private study and research (see section 29 of the Copyright Designs and Patents Act 1988), provided that you name the source and only use as much as is absolutely necessary for your purpose. Since you say this is a history project, clearly you won't be interested in every item on a particular page, so quoting specific items relevant to your topic would fall within this exception. Obvously when it comes to photographs, you would need to use the whole photograph in each case, but this would be permissible provided it was strictly relevant to your project. However, where you can summarise the contents of an article in your own words without losing any of the accuracy or historical value, you should do so. If you are particularly interested in reported speech, say of a politician or significant figure of the day, then you can also rely on section 30(1ZA) for this purpose. In such cases it may be essential to use the actual words spoken (as reported in the press) to give the necessary authenticity to your research.

If you find you need to quote considerably more than the section 29 fair dealing rules would allow, then you should try to get permission from the publisher or its successor. Since the majority of the numerous old local titles are now owned by a handfull of publishers such as Archant and JPI, it shouldn't be too difficult to track down the current owner. If you need to make multiple requests you would probably be better off getting a licence for this from the Newspaper Licensing Agency (NLA). It may sound cynical to say, but these organisations are businesses and they will tend to stress the need to pay for a licence in all cases, rather than pointing out that the fair dealing exceptions can give you a lot of latitude without a licence, so only get a licence or seek permission if you feel this is essential.

Making your research available online is classed as a form of publishing. Indeed the right of communication to the public is divided into two parts, the second of which is expressly defined as "the making available to the public of [...] works in such a way that members of the public may access them from a place and at a time individually chosen by them."* Since this is a right which belongs to the copyright owner, you need to permission to do this unless one of the exceptions outlined above applies. As you can see, the exception in section 29 relies on the research not being of a commercial nature.

And lastly a quick word on your sources. You don't mention how you want to access these old newspapers and how you will present the copies you make. I assume you don't have a big pile of old newspapers in your loft and so you will be relying on either the archives held in your local library or an online resource such as British Newspapers Online. If it's the former then you will probably be dealing with microfilmed copies of the papers and you will need to convert these images to digital format. The librarians/archivists should be able to advise you about this. They will probably insist that you sign a copyright declaration to say that you require the copies for your own private study. That is fine as you are claiming the section 29 exception for this purpose.

However when it comes to using websites like the British Newspaper Archive linked to above, you need to comply with the terms and conditions of that website. At first glance the statement "You can use the website for personal, academic or non-commercial purposes, subject to these Terms & conditions" sounds great, but it only covers your access to the website. Once you start digging into the details, you find a much more restrictive policy with regard to copyright (see this page for instance). However when it comes to the actual newspaper content, the law is as I have explained it above and you won't need to get extra permission if you are only using small and relevant snippets under the fair dealing exceptions (section 29 and 30). If you break the terms and conditions of the BNA website, that would be a matter of contract law, not copyright. An alternative to using the BNA website is to physically visit the British Library Newspaper reading rooms at St Pancras in London, or at Boston Spa in Lincolnshire. You would need to check what if any Covid restrictions are in place.

*The piece quoted is from Article 3 of the EU Information Society Directive ( 2001/29) which forms part of UK copyright law.
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
JonBol
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Re: History project

Post by JonBol »

Thank you for this detailed explanation. It really is a minefield - interpretation of fair dealing and exceptions.
So I take it best avoid downloading from websites that may involve agreeing to terms and conditions, copy direct from originals.
As it will be a non-commercial project I can claim section 29 and I can share with others including by being able to download from a website.
The project will be in pdf format for download or sending by email or hard copy available at our local museum.
I suppose what concerns me is the "private study and research" being made available to others?
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Re: History project

Post by AndyJ »

Hi again JonBol,

Don't worry about sharing your work with others. Research which is kept private doesn't add to the richness of society's culture; it's rather like an archeologist who undercovers a Roman ruin, says to himself, 'that's interesting' and then covers it up again without telling anyone. The distinction is between those who release such research for its own sake, and those who only do so with a commercial motive in mind - rather like FindMyPast who own the BNA website.
Just make sure that you make it clear that you are relying on the section 29 and 30 exceptions so that others who read your work know its provenance, and that you are not in any way authorising your readers to use the material you have amassed for purposes that fall outside the rules. By sticking to pdfs it is much less likely that readers will casually take individual images or text and use* them in a way which is commercial or falls foul of the fair dealing rules in some other way.
Good luck with your project.

*And even if they do use your work inappropriately, that's not your problem.
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JonBol
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Re: History project

Post by JonBol »

I am dealing with an archive that has various items of interest to my project.
They have about 70 relevant photos sitting in a shoebox unidentified other than date. They charge £15 per photo to scan from the original negative and an unknown fee if the image is to be shared. So I would be paying for the first scan which they would have on a database to sell to others. I have offered to identify and put in context these photos and provide a hard copy of the project for their reading room if they will scan the negatives or allow me to photo the photos for free. I have said I would not share the photos with anyone who has a copy of the project except a hard copy for the local museum. This means sharing the finished project without these photos but at least they would be available locally. However, they would rather have a box of unidentified photos than come to an agreement to their benefit. So far no agreement.
They also have copies of the Company in-house magazine which contains various articles and newspaper quality photos of people, places and events of interest to my project. They have said I cannot share images I have taken from these magazines with anyone. They have stressed that any images I take must be for personal use only.
The project is not commercial and will not be put online. It contains many images with copyright owned by me or by private individuals who have agreed to their inclusion. It will be provided to contributors by usb stick or via online means. It will not be available online but I will publish its existence for interested parties to request copies.
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Re: History project

Post by AndyJ »

Sadly what you have come up against is a mentality which seems all too prevalent in archive circles: ownership means control. Most archives are set up to preserve documents and artefacts so that future generations can benefit from them, but as you say, sometimes the present day guardians are more obsessed by maintaining the status quo as a monopoly rather than making their resources more widely available for all to share and be enriched by. That said I have also encountered many archivists who excel at making their stock accessible, so you seem to have been particularly unlucky in the fact that this archive holds the majority of the material you need for your project.
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JonBol
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Re: History project

Post by JonBol »

Yes, they suggested have all their holdings were digitised they would eventually be out of a job. However their mission statement suggests they encourage research! No one but me and some 80 year olds can identify those photos which would surely make them more valuable to the archive?

The in-house company magazine is also available at the British Library so I can make necessary copies there which would not infringe the rules I have to sign up to at the archive before being allowed to make copies.
The copyright of images ends 75 years after the death of the photographer I believe. What if the photographer was in-house, a direct employee of the company, would the copyright not belong to the Company? If it is the Company, at what point does copyright end?
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Re: History project

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Yes, for the period from 1945 to the present day the copyright term is based on the lifetime of the author of the work plus 70 years from the end of the year in which he/she died. This applies even where the creator of the work was employed by a company and so the company became the owner of the copyright. However if as a result of the employment the author/photographer is not personally identifiable, the work becomes subject to the rules in Section 12(3) of the Copyright Designs and Patents Act 1988, and the term is just 70 years from the end of the year in which the work was created or 70 years from the end of the year of first publication, of this is later. So in the case of photographs etc from the period before 1950, where it is impossible to identify the photographer, those works will now be out of copyright, irrespective of who actually claims to hold the rights today.
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JonBol
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Re: History project

Post by JonBol »

Right I understand. Many of the photos I want are 1950, so based on what you are saying are out of copyright. However, I guess the archive can impose its own rules if allowing a member of the public to have or make a copy. Or can they charge for the copy but not impose rules on publishing be it in print or online ie licensing?
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Re: History project

Post by AndyJ »

Yes, what the archive are doing is controlling access via their own rules which probably have little to do with copyright. Even with items they hold which remain in copyright, it is most unlikely that they are also the copyright owner and therefore do not have the authority to say whether or not a work they hold can be published (or re-published), beyond the fact that the normal fair dealing rules that say you may obtain a single copy of a published work provided it is for your own personal study. In support of your case, there is specific authorisation which allows them to digitize any published works they hold and make them available via terminals in the archive, because this helps to preserve the originals, removing the need for everyone who needs access to thumb through the pages leaving sweat marks or worse on the paper! Another rule allows the text to be digitally analysed (ie indexed) as this does not amount to copying.

As you will note from the first link above to section 42A, any charge they make is supposed to purely cover the actual cost of the copying (ie a few pence), and not act as an income stream for the institution.

I would be unsurpised to find that the staff of this particular archive are unaware of the latest legal provisions concerning copyright and have essentially made up their own rules 'because this the way we've always done it'.
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JonBol
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Re: History project

Post by JonBol »

They want £15 to digitise from a negative as they say the right negative has to be found and it also needs to be catalogued. So I would be paying for the digitisation then available on their database to sell to others probably at a lower rate. There would normally be another fee if I wanted to share it with others, a finger in the air figure depending on how it was shared and to how many. They have agreed to waive the sharing fee but sharing would be heavily restricted and they want a printed copy of the history. I have asked if I could photo the photos to save the admin cost. This would also mean I would not have a high resolution image which works in their favour but enough for me. So far they are sticking to the £15 per image and I want over 50!
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