The Times Archived Content

'Is it legal', 'can I do this' type questions and discussions.
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potrebj
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The Times Archived Content

Post by potrebj »

Hi,

I downloaded some archived news articles and stories from thetimes.co.uk from between 1917 - 1980, with most of the articles from wartime period. Most of the articles I downloaded is about Ukraine.

Now I want to, depending what I am allowed to do by the law, either

1) paraphrase & summarize some of the articles or their parts and then translate them into Ukrainian or Polish,

2) translate full content of some of the articles into Pl/Ukr,

3) use screeshots of these articles or their parts as graphic elements on my website (e.g. as a photo in the right top corner of the article content),

4) use only a few quotes from each of the articles and translate into Ukrainian or Polish language

I tried to reach the Times people to tell me what I am allowed and what I am not allowed to do, but no one bother to answer my questions

I will be eternally grateful for your help

Whatever I will be eventually allowed to do with those articles, I would like to upload "the content" on my personal non-commercial (at the very precise moment) website.
Jare Kpotr
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AndyJ
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Post by AndyJ »

Hi Jare,
There are two different aspects to this question. Firstly, presumably you obtained membership of the Times website in order to download these articles, and so you are bound by their terms and conditions which state:
Our content
Our content, trade marks, copyright, patents, logos, domain names and other related intellectual property rights or other features of our brand belong to us or to our licensors. Your use of our services does not grant you any rights in and/or our licensors intellectual property whether for commercial or non-commercial use.
We grant our users a licence to access and use our services and intellectual property rights (subject to your ability to access our services as set out above) and to the following usage restrictions:
  • (a) you may use our services for personal, private and non-commercial purposes; and
    (b) you must not commercially exploit, or sell any content appearing on our services (this does not apply to any user content posted by you and in which you retain ownership rights [ ...]).
In consideration for the rights that we have granted you under these terms of use, you permit us to provide advertising and other information to you, including permitting our third party affiliates to do the same.
Third Party Content
Third party content included as part of our services, is licensed to you either under these terms of use or through such third party terms and conditions that will be made known to you as and when they become relevant (e.g. if you use any services provided by The Sunday Times Wine Club, you will be required to also accept their terms and conditions).
Obviously if you breach their terms, they have the right to cancel your membership, but I suspect that may not be a major worry.
So the important part concerns copyright. All the written articles will be treated as literary works and any photographs or illustrations will be artistic works, and all will have whatever term of protection would be applicable based on the lifetime of their authors, plus a post mortem period. Translating a copyright work (also known as making an adaptation of a work) is something which requires the permission of the copyright owner. The actual layout of the printed page is also subject to a separate copyright but as that particular form of copyright only lasts for 25 years from the end of the year something was published, that doesn't affect any of the articles you are concerned about. A newspaper is also recognised as being a compilation, so even if an individual article is somehow unprotected by copyright, the fact that it appears within a compilation will generally provide protection, but as the term of the copyright for a compilation cannot exceed the term for each individual article, again that won't really be an issue here. Fortunately most newspaper articles name their authors so at least you have will generally have a name to search for to find the date of death. Put simply, if the author died before 31 December 1963 and publication also occurred occurred before 1 August 1989, then their work is in the public domain now because at that time the post mortem period was only 50 years and the change to 70 years did not apply retrospectively to earlier works providing that the author had died at least 20 years before 1 August 1989. Unfortunately if you cannot discover the date of death of the particular author, then you must make any assumptions about how long they might have lived based on what was/is a reasonable life expectancy. So for instance a journalist writing in 1917 might well have been as young as 20, and he might have been expected to live to be 75 years of age, meaning that he would have died in 1972 and his work would still be in copyright until 2043. Then looking at the other end of the period of history you are interested in, another journalist similarly aged 20, writing in 1975 and with a similar life expectancy would still be alive today and so his work would remain in copyright until the end of the current century.
So how does this affect your questions?
1. If you paraphrase and/or summarise the articles, you should not need permission to translate your own words.
2. If you wished to translate the articles verbatim, and you weren't certain that the article was out of copyright, then you would need permission from the owner of the copyright, that is to say, the newspaper (see below about licensing).
3. Using screenshots which did not contain sufficient detail for the actual articles to be read would probably be OK because the only thing likely to be infringed is the 25 year copyright in the typographical layout, which as has already been noted, would no longer apply to the articles you are interested in.
4.. Using short quotes would probably fall within the fair dealing exemption for research of a non-commercial nature, and from October 2014 when a new fair dealing provision for quotation is expected to become law, this will almost certainly be OK to do without needing permission.

Licensing.
The main UK newspapers are members of a body called the Newspaper Licensing Agency which can issue licenses to use content from their members' papers. If you want to use the full text of an article for which you are not sure whether the copyright has lapsed, they may be able to sort out a licence for what you want to do. However since they are mainly concerned with licences for modern day content, you would probably be better off trying Times Newspapers again.

Jurisdiction.
Obviously Ukraine is not subject to either UK or EU law on copyright, but Poland is subject to EU law therefore, slightly different things need to be considered based on where you host and publish your work. Polish law is substantially the same as UK when it comes to working out the length of the copyright term, because both countries have to meet the EU rules. You would need to consult someone familiar with Ukrainian copyright law to find out the exact framework there. However if you intend to post your work on a server based within the EU, I advise you to follow the UK rules and you shouldn't go far wrong.
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potrebj
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Post by potrebj »

Many thanks for that
Jare Kpotr
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Post by tsrwright »

I am having trouble understand the basis for this statement above::

Put simply, if the author died before 31 December 1963 and publication also occurred occurred before 1 August 1989, then their work is in the public domain now because at that time the post mortem period was only 50 years and the change to 70 years did not apply retrospectively to earlier works providing that the author had died at least 20 years before 1 August 1989.

If the author died on 31 July 1969 the copyright would not have expired until the end of 2011. Why do the Duration Regs not apply i.e. the copyright period expires 70 years after the end of the year in which the author died. I must be missing this exemption in the Regs.
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Re: The Times Archived Content

Post by Spitfire29 »

Hello,

I read the following statement in a post by AndyJ from 2014,

"Put simply, if the author died before 31 December 1963 and publication also occurred occurred before 1 August 1989, then their work is in the public domain now because at that time the post mortem period was only 50 years and the change to 70 years did not apply retrospectively to earlier works providing that the author had died at least 20 years before 1 August 1989."

viewtopic.php?t=1607&hilit=us+newspapers

I was hoping that he or someone else could explain where that comes from, as I cannot find confirmation of it elsewhere.

Thank you,
Paul
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Re: The Times Archived Content

Post by AndyJ »

Hi Paul, and belated apologies to tsrwright for having missed his similar question from Feb 2015.

Sadly there is no single document I can point you to as the authority for my remarks. We need to follow a chain of separate authorities.
Let's start with the 1956 Copyright Act. While that Act was in force the law treated published and unpublished works differently. If an author's work was all published within his/her lifetime, then the standard copyright term was their lifetime plus 50 years from the end of the year in which they died. However, if some or all of their work was only published after their death, the copyright term for that particular work commenced on publication and then lasted for 50 years from the end of the year of publication. This is set out in section 2(3) of the 1956 Act.

The 1988 Copyright, Designs and Patents Act came into force on 1 August 1989. Paragraph 12 of Schedule 1 of that Act dealt with what should happen about copyright that was already running under the auspices of the 1956 Act. The key bit for our purposes is in paragraph 12 (2)(a), but in order to provide the full context I will quote from the beginning of paragraph 12:
Duration of copyright in existing works

12(1) The following provisions have effect with respect to the duration of copyright in existing works.

The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.

(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—

(a) literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;
[...]
In other words older works where publication occurred after the death of the author would continue to be protected under the old rules, namely 50 years from the end of the year of publication.

As we know, in 1995 the EU issued its Copyright Term Directive which had the effect of extending the period after the lifetime of the author by 20 years. However when the Directive was transposed into UK law by the 1995 Duration of Copyright and Rights in Performances Regulations, they made no change to the provision in paragraph 12 (2)(a) because that referred to a fixed period of time (ie 50 years) and not to a period following the death of the author. The link I provided above to Schedule 1 is to the current law, not the 1988 CDPA as first enacted, and as you can see, the text quoted above is the current law.

And then lastly, an explanation for the last part of the quoted passage: providing that the author had died at least 20 years before 1 August 1989. Also in Schedule 1 to the 1988 CDPA, measures were put in place to bring to end what would otherwise be perpetual copyright, caused by section 2(3) of the 1956 Act, that is to say the siuation where a work was never lawfully published after the death of the author. This time we need to look at paragrapgh 12 (4) of Schedule 1 which says:
(4)Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;

(b) unpublished engravings of which the author has died;

(c) unpublished photographs taken on or after 1st June 1957.
The new Act (ie the 1988 CDPA) came into force on 1 August 1989, so 50 years from then takes us to the end of 2039. But because this provision applied to works where the timed part of the copyright had not started when the new 1995 Regulations took effect, these works became subject to the new rules, which meant that 70 years had to elapse before such works became public domain. Thus where the author died more than 20 years before the 1988 CDPA came into force, there was effectively no change to what paragraph 12(4) said, as the extra twenty years had already been accounted for, and all unpublished works would then become public domain.

I hope that explains the background to this. In my defence for not providing all this detail in the first place, it would have made for an even longer, much more complicated posting than it already was. It is worth noting that there hasn't been a test case in the last 27 years involving these exact circumstances, as far as I am aware.
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Re: The Times Archived Content

Post by Spitfire29 »

Thank you very much for taking the time, Andy!

I have to confess I'm still not clear. In your reply yesterday you seem to be talking about unpublished work. In your 2014 post that I referenced, you were talking about copyright in old newspaper articles. "Fortunately most newspaper articles name their authors so at least you have will generally have a name to search for to find the date of death. Put simply, if the author died before 31 December 1963 and publication also occurred occurred before 1 August 1989, then their work is in the public domain now . . ."

My particular interest is in papers from 1940. (I am only interested in the text, not in the photos or digitized images of pages.) I understand that for articles without bylines whose author cannot be ascertained, the copyright has expired. The area where I'm not clear is credited articles where the copyright is lifetime + a number of years after death. For 1940 articles, is it death + 70 or are they in the public domain if the author died 20 years before 1989, ie before 1969?

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Re: The Times Archived Content

Post by AndyJ »

Hi Paul,

To be honest I can't remember why I wrote all that stuff back in 2014. With hindsight it probably over-complicated the issue.

Anyway, turning to you more specific point, if you know the name of the author and you can find the date that they died, and this date was before 1 January 1945, the old 50 year post mortem rule applies, and the work is out of copyright. If they died after 31 December 1944 (which will probably be the case for most articles written in the early 1940s), then the 50 year post mortem period was still running in 1995 when the new 70 year post mortem copyright term came into effect. That means that for deaths occurring between 1 January 1945 and 31 December 1951, the work will also be out of copyright now. For deaths from 1 jan 1952 forwards, copyrigfht still runs.

If you know the name of the author but have no way of finding his/her date of death, you can make a reasonable assumption based on his/her date of birth, or when they started their journalistic career and so forth, and if that still indicates that the person probably died after 1951, you need to contact the current copyright owner for permission if the amount you wish to use exceeds what would be permissable under the quotation exception (see section 30 (1ZA) of the CDPA). Assuming that the journalist was a staff employee of the paper, the paper's publisher or their successor in title will own the copyright today under the rule contained in section 11(2) of the CDPA. For freelance writers, the most likely copyright owner will be the writer's heir. If the writer was very prolific and left what might be described as a literary estate*, it may be that a specific estate trust exists to administer the writer's copyright. The latter case almost certainly means there will have been a will, and so you can use the indexes on the HMCTS website for wills proved in England and Wales. Slightly different arrangements apply where probate was granted in Scotland or Northern Ireland. Once you have found the entry for the grant of probate, this will give you the date of the writer's death, from which you will know whether you need permission or not.

* If they were so prolific that they left a literary estate it probably also means that their date of death should be relatively easy to find following a Google search.
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Re: The Times Archived Content

Post by Spitfire29 »

Thanks again, Andy.

Regarding the copyright difference between named and unnamed newspaper articles, the BL website just says,

"If you plan on creating your own transcripts from the newspapers, then please be advised that unsigned newspaper text goes out of copyright 70 calendar years after the year of publication, and signed newspaper text goes out of copyright 70 calendar years after the death of the author(s)."

Is that simple, without need for further enquiry into whether unsigned articles can be attributed?
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Re: The Times Archived Content

Post by AndyJ »

Hi Paul,

Realistically, it's highly unlikely that anyone is going to care about the copyright in a newspaper article written over 70 years ago, irrespective of whether the author was named or not. Legally speaking there are two different scenarios. The first is where the identity of the author is unknown. The definition of unknown is to be found in Section 9, subsections (4) and (5|) which say:
(4) For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.

(5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.
The 'this part' being referred to here is Part One of the Copyright Designs and Patents Act 1988 which covers copyright (as opposed to performers' rights or design rights for instance). The duration for copyright where the identitity of the author is unknown is covered in section 12 (3) which says:
(3) If the work is of unknown authorship, copyright expires—

(a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or

(b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available, [...]
That is what the British Library is referring to in their guidance.

However there is a separate type of 'identity not known' and that is covered in section 57, which incidentally also lies within Part One of the Act, so the definition of unknown identity still applies. This says:
57 Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

(a)it is not possible by reasonable inquiry to ascertain the identity of the author, and

(b) it is reasonable to assume—

(i) that copyright has expired, or

(ii) that the author died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to—

(a) a work in which Crown copyright subsists, or

(b) a work in which copyright originally vested in an international organisation by virtue of section 168 and in respect of which an Order under that section specifies a copyright period longer than 70 years.

(3) In relation to a work of joint authorship—

(a) the reference in subsection (1) to its being possible to ascertain the identity of the author shall be construed as a reference to its being possible to ascertain the identity of any of the authors, and

(b) the reference in subsection (1)(b)(ii) to the author having died shall be construed as a reference to all the authors having died.
Confused? You have every right to be. The first rule says that where the author's identity is unknown copyright ends 70 years after the work is published, yet the second rule says that you may be liable for copyright infringement if it can reasonably assumed that the author died less than 70 years before the alleged act of infringement.

Although you won't find it set out clearly in the law, Section 57, in effect, is there to meet a different need, namely how to deal with works which were not published during the unknown author's lifetime (an event which might make it easier to identify him or her), and it is presumed that the work was published after their death, but there no way of showing whether or not the publication was 'authorised'. As I explained earlier in this thread, any work made before the 1988 Act come into force which has not been published lawfully is subject to perpetual copyright until such time as it is lawfully published. If the author was unknown then theoretically there can be no known heir who could authorise publication. Where anonymity has been achieved through the use of an alias or pseudonym (eg George Eliot), then clearly, the identity of the author may become known at some later point, meaning that the copyright term can then be calculated under the normal rules. However, in practice, it would be up to the defendant to convince the court about the validity of the assumprtion. A particular pitfall occurs if it cannot be shown that the work was lawfully published (obviously this is not relevant to your newspaper examples). If it can be shown that a work was unlawfully published, and the defendant has relied on that publication to calculate the start of the 70 year period, his defence will fail. Since, by definition, we are dealing with a person whose identity is unknown, it is very hard to categorically prove any facts relating to him or her, such as how long he may have lived or who his heirs may or may not be, and therefore who could provide the lawful authorisation.

As far as I am aware this part of the law has never really been tested in the courts, as so there remains a good deal of uncertainty about how it is supposed to operate in practice. Which takes me back to my opening remarks. You would be very unfortunate to be sued over a 70 year old work of unknown authorship, especially if publication occurred in a reputable newspaper. But beware the 9 little words 'not possible [..] to ascertain his identity by reasonable inquiry'. Later legislation concerning orphan works licences has elevated this to the requirement for a diligent search, which given today's online resources, may need to be a great deal more thorough than was previously possible.
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Re: The Times Archived Content

Post by Spitfire29 »

Thanks again, Andy.

From resources at digitisingmorgan.org I've discovered a previously unheard of factor when seeking permissions for old newspaper articles.

The newspaper's copyright in the work of a named staff writer is removed after 28 years, when full control passes to the writer until the end of life +70. So the copyright of work by named staff writers in 1940 who died after 1968 is with their family not the paper.

Do you think that's everything?!
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Re: The Times Archived Content

Post by AndyJ »

Hi Paul,

Although the website you linked to is a very good resource, your statement
The newspaper's copyright in the work of a named staff writer is removed after 28 years, when full control passes to the writer until the end of life +70"
is not what it actually says.

What it says, in the context of the 1842 Copyright Act, is as follows:
However, even if copyright in the work belongs to the owner of the newspaper, magazine or periodical, the 1842 Act includes an important proviso as follows: 28 years after first publication, the right of publication shall revert to the author for the remainder of the copyright term (s.18). So, for journalistic works first published before 1 July 1912, one cannot simply assume that the copyright in works created under contract first belonged to the newspaper; that is, the contract of employment must specify that the copyright belongs to the newspaper. Moreover, even if those rights do belong to the newspaper as an employer, the copyright may well have reverted back to the author after the statutory period of 28 years.
The 1911 Copyright Act repealed the 1842 Act which is why this special provision only applies to newspaper articles which were published between 1 July 1842 and 1 July 1912 (which is when the 1911 Act came into force). And the copyright term under the 1842 Act lasted for whichever was the longer of: the lifetime of the author plus seven years after his death, or 42 years from the date the work was published. That applied to works published within the lifetime of the author. If the work was first published after his death, the term was 42 years from publication. So you do not need to consider the lifetime plus 70 years as the term for these old works, where the copyright may have reverted to the author under this proviso.
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