Reproducing old postcards

[Postcardman]

I have some old postcards from the period 1898-1920, which have no evidence of the author or publisher.

I want to use these to illustrate a book I am writing.

I have two questions please:
- Are there any risks in publishing these? Presumably, given their age, there should be none - see note below.
- What rights does a recipient have to use the image if I send him a scanned copy of one of these cards?

The Copyright, Designs and Patents Act 1988 says:

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,
(followed by various clarifications)

Thanks

[AndyJ]

Hi pcman,
As you say, if the author of the images cannot be traced after a dilligent search (the Act uses the term 'reasonable inquiry'), then Section 12 (3) - the bit you quoted - kicks in, and on that basis you can reasonably assume these postcards are out of copyright. The key is in the 'reasonable inquiry' provision. That doesn't just mean the fact that there is no reference to the author on the cards themselves. If the publisher's or printer's details are shown then you would need to follow these up as in all probability the company will be the current owners of any copyright, assuming they or their heirs can be traced. This is because normally where work done by an employee (or before 1988, commissioned by a company) it is the employer who is the first owner of the copyright.
That said, the copyright law in force (the 1911 Act) at the time these postcards were produced had a special provision (contained in Section 21 of that Act) by which photographs were treated differently. Copyright in photographs existed for 50 years from the date the picture was taken (the Act says "from the making of the original negative from which the photograph was directly or indirectly derived"). So since all the photographs must have been taken before 1921, copyright in them would have lapsed by 1971. Although there was a further Copyright Act in 1956, it did not amend this particular provision (Schedule 7 para 2 of the 1956 Act refers).
It seems to me unlikely that the text and typographical layout of the cards (separate from the picture) would qualify for any special copyright protection, so you should be on safe ground.
As for the rights of someone who receives a scanned copy from you, the answer is he has no rights - and no restrictions either. And neither do you. Because scanning (and photocopying) are mechanical processes devoid of human creativity, there can be no claim to copyright in the scanned reproductions, thus any scans you produce will be in the public domain and anyone can re-use them as they see fit.
I hope this helps.

[Postcardman]

Hi AndyJ

Thank you for your detailed reply.

For these postcards which are out of copyright, what rights belong to the owner of the actual postcard?

Taking an extreme example, if only one copy of a distinctive postcard exists, I assumed that the owner would control rights to images of the card. If not, as soon as he republished it, others could then use the image without limit.

Or am I missing something? I am not an expert.

[AndyJ]

Hi pcman,
Once something is out of copyright, then the only 'right' left to the owner of the physical card is the decision about whether grant access to it. If he decides to publish a copy of it (say on the internet) he has no right to stop someone else taking and using the image. Similarly, if he wrote a book about postcards, and this particular card was one of the images featured in it, only the image of the card could be used by others without a licence, since copyright in the text and typographical layout of the book in general would belong to the author and publisher respectively.
Obviously the owner does not have allow access to the card.

[Postcardman]

Thanks again AndyJ.

At a recent conference I gave a presentation which included projections of some images of my postcards. I would like to include some images of these in the printed proceedings.

From what you say, I cannot stop people copying any images which are printed. If somebody chose to copy these, they would need to copy the printed image, which is evidently of limited quality. To me this seems an acceptable risk.

Can I stop the publisher using the digitised images for purposes other than illustrating the proceedings? I would want them to agree conditions under which they would receive the images.

For example "We agree that we will use the image supplied by XYZ (=me) only for the purpose of illustrating the printed proceedings. We will not pass any copies of the image to any third parties and upon publication we will destroy all copies we hold of the image other than printed on the proceedings."

[AndyJ]

Hi pcman,

Obviously what you are proposing no longer relates to copyright, and has moved into the realms of trying to control the use of the images you have created. You are perfectly entitled to stipulate to the publishers what your terms are; they are equally entitled to accept or decline them.
However, assuming that their sole aim is to publish the proceedings, and not otherwise exploit your images, I'm sure you will be able to come to a satisfactory agreement.