Old Trade Directories

'Is it legal', 'can I do this' type questions and discussions.
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Paul33
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Old Trade Directories

Post by Paul33 » Wed Oct 04, 2017 6:55 pm

If I purchase a CD on which there is a scanned copy of a 19th century trade directory, are the seller's claims of copyright valid or nonsense ?

In other words, am I free to sell my own copies given that I'm fairly certain the old book is well out of copyright ?

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AndyJ
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Post by AndyJ » Thu Oct 05, 2017 4:16 pm

Hi Paul,

Yes I think you can safely assume that the claims to copyright in the scanned images are worthless. Provided that the original work had previously been published* (as is clearly the case with the trade directories) and was now out of copyright, no court would accept a claim of infringement in scanned images which by definition do not allow their maker to impart any of his own personal creativity to the new digital versions.

However, be careful about the complete CD of such scans. It is perfectly possible that the CD could be protected by database right, even if there is no notice to this effect on the CD or packaging. A database is defined as:
a collection of independent works, data or other materials which—
  • (a) are arranged in a systematic or methodical way, and

    (b) are individually accessible by electronic or other means.
Database right differs from copyright because different qualifying criteria need to be met:
Database right

13.—(1) A property right (“database rightâ€￾) subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database.

(2) For the purposes of paragraph (1) it is immaterial whether or not the database or any of its contents is a copyright work, within the meaning of Part I of the 1988 [Copyright, Designs and Patents} Act.
For more details see the Database Regulations 1997.

A pdf containing a table of data has recently been found by the High Court to be a database and so I think there is a strong possibility that a CD containing a large number of digital images might also qualify as long as the maker can show he made the necessary substantial investment in sourcing and presenting the contents. It is an infringement of database right to extract or re-utilise all or a substantial part of the contents of a database without permission.

*Special provisions exist in cases where a person lawfully publishes a previously unpublished work for the first time, even though the original may have been created many years ago and when more than 70 years had elapsed since the death of the author. The 'first' publisher is then entitled to a period of 25 years during which he can claim a 'publication' right which is very similar to copyright. See Regulation 16 of the Copyright and Related Rights Regulations 1996.
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

Paul33
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Post by Paul33 » Thu Oct 05, 2017 5:46 pm

Thanks for your help.

The CD simply has a single PDF image with scanned images of all the pages within the file. There is no added functionality of any sort.

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AndyJ
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Post by AndyJ » Thu Oct 05, 2017 6:37 pm

Hi Paul,

It's not the functionality which would concern me. As can be seen from the court case to which I referred, a single pdf which contains a substantial array of data can constitute a database. It doesn't matter that the indivdual data records (ie the trade directory entries) may or may not be protected by copyright, it is the process of amassing and dispalying the data which is key. Clearly the scanning and digization form part of the process of displaying the data. Since neither a CD nor an indivdual pdf can be read directly by the human eye, the format meets the second criterion of being accessible (only) by electronic means.

If just one trade directory has been scanned, I think it is unlikely to reach the threshold of a 'substantial investment' (which incidentally can be measured in either financial or intellectual terms), but I flagged it up because it could be a possible problem, and in an area of the law where we have comparatively little caselaw to go on.
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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