Using 19th C letters and poems in a PhD, maybe a book

'Is it legal', 'can I do this' type questions and discussions.
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Cherry
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Using 19th C letters and poems in a PhD, maybe a book

Post by Cherry » Mon Jun 03, 2013 5:34 pm

Hello. First of all, this is a great forum and I appreciate the advice that's given here. I've already had several questions answered simply by searching/reading the forum.

I am researching a collection of letters and poems from the 19th Century. Most are unpublished. Most originated from within the UK. They were sent to the family of a famous author. Let's say Charles Dickens for the sake of context. There is a 'Dickens Archive' who owns these materials. The archive staff are lovely and helpful and I know they will work with me. However, the are small and aren't copyright experts, and therefore I want to be prepared with the correct information so I can plan for the next few years. I also want to know generally so I can revise my plans now if I need to.

I am using:
- Letters (some from famous individuals)
- Unpublished poems (most are anonymous or from the general public, with a few famous names)
- Published poems (published either in local newspapers, or in 19th C magazines, and in one case, a book)

I have manually transcribed all of the text of these letters and poems.

Am I allowed to:
- Use the transcribed copy in my PhD
- Use the transcribed copy in a subsequent book (for profit)
- Use the transcribed copy in various papers for conferences and journal articles
- Use photos of the letters and poems in all of the above formats.

Many thanks in advance.

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AndyJ
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Post by AndyJ » Mon Jun 03, 2013 10:36 pm

Hi Cherry
Glad to hear you've already found some useful bits of information here.
There are two main distinctions you need to make: between published and unpublished works created before 1989, and material for your thesis, and material for other, non-personal-study uses.
Generally speaking prior to the 1988 Copyright Designs and Patents Act unpublished works were treated in a way that their copyright term did not begin until their authorised first publication. The 1988 Act set about changing this state of affairs, such that the copyright clock was set ticking on 1 August 1989 (when the Act came into force) with a fixed 50 year term, meaning that affected works in existence before 1 January 1969, irrespective of their age, would enter the public domain on 1 Jan 2040. This means that all the unpublished letters and poems etc will fall into this category. As I suspect you may not be able to identify the heirs (as current owners of the copyright) to the writers of the letters and poems, it seems unlikely that you will be able to obtain permission to publish these documents before they automatically enter the public domain. However, see my final paragraph about a possible solution.

The works which have been published should now all be in the public domain, so you can freely use them, with attribution to the authors where this is known.
The handwritten copies you have already made are covered by the fair dealing exemption in section 29. Furthermore, I believe the same exemption would cover your thesis under the heading of research of a non-commercial nature, but as I can't immediately find an authority to back up this belief, you should proceed with caution on that aspect, especially given my comments in the paragraph after the quote.
29 Research and private study.
(1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
(1B) No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise.
(1C) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of private study does not infringe any copyright in the work.
(2) Fair dealing with the typographical arrangement of a published edition for the purposes of research or private study] does not infringe any copyright in the arrangement.
(3) Copying by a person other than the researcher or student himself is not fair dealing if—
  • (a) in the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restriction on multiple copies of same material), or
    (b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.
(4) It is not fair dealing—
  • (a) to convert a computer program expressed in a low level language into a version expressed in a higher level language, or
    (b) incidentally in the course of so converting the program, to copy it,
    (these acts being permitted if done in accordance with section 50B (decompilation)).
(4A) It is not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (these acts being permitted if done in accordance with section 50BA (observing, studying and testing)).
Although there are several exemptions covering things done for the purposes of instruction and education - which would include your thesis - unfortunately they only apply to published works, so are not of any assistance with regard to the unpublished poems and letters. Should you wish more details on this, see sections 32 - 36A

I mentioned a possible solution which might allow you to use the unpublished works before 2040. This comes about because of provisions in the Enterprise and Regulatory Reform Act (ERRA) passed by Parliament in March this year. The key part of Section 76 of that Act says:
(2)The Secretary of State may by regulations amend Schedule 1 [to CDPA 1988] to reduce the duration of copyright in existing works which are unpublished, other than photographs or films.
So far the Secretary of State has not issued any regulations about this, but something is expected this Autumn. The best place to keep up to date with developments is the IPO website. Furthermore, since most of the unpublished works which you are interested in will be what are termed 'orphan works' as the current owner of copyright in them is either unknown or untraceable, the same Act (ERRA) also allows for the setting up of series of bodies to licence the use of orphan works, once a diligent search has failed to trace a current rights owner. Once again, no secondary legislation on this is expected until the Autumn at the earliest, and the setting up of the licensing bodies could take much longer, so this may not be of much help in respect of your thesis. Incidentally, if the helpful archive staff would like to improve their knowledge of copyright issues which may affect them, I can recommend an excellent book entitled Copyright for Archivists and Records Managers4th Edition by Tim Padfield published by Facet (ISBN978-185604-705-0).
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

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Post by Cherry » Sat Jun 08, 2013 10:51 am

Dear AndyJ,

Thank you for that quick and extremely thorough reply! This is very helpful. I apologise for my delay in replying.

I understand your points and will keep my eye on the IPO Website.

May I clarify that the points you made in your first response to my query relate to BOTH unpublished letters and poems? I need to use both for my PhD.

May I also clarify that the points you've made relate to both transcribed copy AND digital reproductions of the original work? In another thread, "Use of 19th century newspaper articles in my book" you said these could be reproduced if it's retyped and would be protected under a different attribution. But I believe this only relates to published work. Can you please clarify this?

Also, does this use relate to a work reproduced in its entirety or just excerpts? Some of the work I'm using has been published in magazines and books.


I have one last question: can an archive or library, in obtaining a body of ephemera from descendants of, say, Charles Dickens, effectively become copyright owners of some or all of the material? I realise this isn't the case for the individual, unpublished letters and poems I'm concerned with, but I wonder where this line is drawn.

The archive manager said I was 'fine to use the (unpublished) letters' for my PhD, both published and unpublished, which varies from your comments. I also presume this is because PhDs usually use excerpts rather than entire letters and poems.

I'm sorry for the additional questions. Thank you again for your help.

Best wishes,
Cherry

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Post by AndyJ » Sat Jun 08, 2013 1:50 pm

Hi, Cherry,
I can appreciate why you (and the archivist) might be confused. It is a very messy situation.
During the course of their life, these poems and letters have been covered by three separate Copyright Acts. The 1911 and 1956 Acts treated unpublished works differently to published works. For an unpublished work, the duration of the copyright term did not start until the work was legally published. Publication here means made widely available to the general public, and it is one of the rights of a copyright owner to determine whether or not a work is published.
The 1988 Act then abolished the distinction between published and unpublished works for all new works made after commencement of that Act (which occurred on 1 August 1989).
However there remained a problem with how to deal with unpublished works already in existence, which had not at that point begun their copyright term.
Schedule 1 of the 1988 Act deals with all the transitional issues. Paragraph 12, sub-paragraph (4) specifically deals with existing unpublished works:
(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 reason I didn't quote that last time is that it is not very helpful unless you also know what section 2(3) of the 1956 Act says, namely:
(3) Subject to the last preceding subsection, copyright subsisting in a work by virtue of this section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the author dies, and then shall expire.
Provided that if before the death of the author none of the following acts had been done, that is to say:-
  • (a) the publication of the work,
    (b) the performance of the work in public,
    (c) the offer for sale to the public of records of the work, and
    (d) the broadcasting of the work,
the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year which includes the earliest occasion on which one of these acts is done.

I wanted to spare you all that, first time round!
So to summarize, works in the collection which have been published are now in the public domain and you can freely use them in your thesis or elsewhere. This is why I said elsewhere that re-typing published newspaper articles was OK. Unpublished works remain in copyright by virtue of Schedule 1, paragraph 12(4), until 1 January 2040.
Realistically, you run very little risk of anyone suing you over unpublished letters and poems which are over a century old, because I suspect the current owners of any copyright in them will be unaware of their existence or even if they were, will be unaware of the intricacies of the law, as outlined above.
Just to tidy up your other questions, poems and letters are both classed as literary works, and so both are treated in the same way. The sole distinction is what has or hasn't been published. Copying would cover either quoting the actual words or reproducing them in a digital image etc of the original document, if they are still in copyright. The reason for the distinction in the other thread about newspapers came about because the company working in partnership with the British Library was claiming copyright in their digital scans - something I think is highly debatable - of the original newspapers which are themselves no longer in copyright, and by re-typing the original text, the person compiling her family history would not infringe any copyright in the image.
Reproducing something which is in copyright in its entirety would certainly infringe copyright. Quoting small sections might well not infringe as long as they did not amount a substantial part of the work. This is a difficult call because the test for substantiality is based on the 'essence' or main quality of the work being copied. If you take a look at this thread, I have tried to explain the principle with regard to a poem. If you are quoting a work for the purposes of criticism or review, then the rules are slightly relaxed because, almost by definition, you may need to quote something which is the essence of a work, in order to then review it or criticise it. This could indeed be what the archivist had in mind. However, the fair dealing exemption cannot be used as a defence where the underlying work has not itself been published:
(1)Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.
(my emphasis) And finally, as far as ephemera generally are concerned, ownership of an article or work does not of itself confer copyright on the archive or library etc, although since they can control access to the works, they can set certain terms and conditions over what may be done with the articles, much in the way the British Library and BrightSolid are doing in respect of the national newspaper collection. If a museum makes reproductions of works in their collection, say on postcards or posters, then they will generally claim copyright in those reproduced images even though the underlying article may be out of copyright. Most copyright purists would argue this is an abuse of the purpose of copyright, but from a commercial point of view it makes sense to the museums. However such reproductions do not in any sense re-vitalise copyright in the original work, which others may freely copy assuming they can gain the necessary access. This would hold true if you were somehow to obtain permission to use these unpublished poems in a book. Your book would be covered by copyright, and nobody would be able to copy any images you might include in the book, without infringing your copyright, but they would be able to quote the words of the poems to which they might otherwise have been unable to gain access, but for your book.
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

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Post by Cherry » Sat Jun 08, 2013 7:30 pm

Dear AndyJ,

Thank you once again for all of your help and information. It's one thing to read the copyright acts and another to understand what it all means, so this is hugely helpful.

I'll post a follow-up as details unfold with this project in case it's helpful to anyone else.

Many thanks and best wishes,
Cherry

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Post by Cherry » Sun Jun 09, 2013 10:15 am

Dear AndyJ,

I apologise. Could I please clarify one more item?:

What constitutes 'available to the public'?

Would ready availability on a library shelf not be considered as such?

Many thanks,
Cherry

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Post by AndyJ » Sun Jun 09, 2013 12:12 pm

Hi Cherry,
When I wrote that, I wondered if I should expand upon it, but decided against doing so because, yet again, it gets complicated. I should have known better!
Publication in a copyright sense is a rather restricted concept. It means the issue of copies of a work to the public by sale or some other transfer of ownership, but does not include providing access to a work* (normally the original), for instance in an archive or similar place.
Lending and rental of a work for direct or indirect commercial gain are also activities separate from publication, although broadly speaking they will usually concern a work which has already been 'published' in the sense already described. Finally, 'issuing to the public' is yet another slightly different activity which is usually taken to mean putting a work into general circulation or transferring possession from one person to another (think of flyers handed out in the street).
That is a somewhat superficial summary. Tim Padfield in his book Copyright for Archivists and Record Managers to which I referred previously, takes a whole chapter to explain the issues.

And of course publication should not be confused with 'publication right', something created by the EU in a Directive (92/100/EEC). This right comes into existence when a previously unpublished work is published after its natural term of copyright protection has expired (think of your poems etc after 1 January 2040) and allows the publisher to enjoy a right similar to copyright which lasts for 25 years from the end of the calendar year in which it is so first published. More details on this and the lending and rental rights can be found in the Copyright and Related Rights Regulations 1996 (SI 1996/2967).

* Just for the sake of completeness, publication also includes the making available of a work via an electronic retrieval system such as a database available to the public via the internet. This slightly runs counter to the general idea of a transfer of ownership, but was intended by the EU to deal with the phenomenon of electronic publishing which does not involve the creation of any physical copy (such as ebooks etc) and where the electronic copy is not necessarily owned in the same sense as a physical book. Fortunately this anomaly does not apply in your case.
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Post by Cherry » Sun Jun 09, 2013 6:37 pm

Hello, AndyJ,

Thank you for clarifying what constitutes 'publicly available' and the rest.

Best wishes,

Cherry

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