Tracing copyright owners and asking permission.
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Post by YojYelesom »

The Local History Group that I help co-ordinate are planning to put all its archives online. This website will be accessed via the main village website and access will be permitted to members of the History Group (initially). The main contributor of the archives is obviously concerned that in some cases, our ancient documents and some more recent postcards, may be subject to copyright law. Generally speaking, can we reproduce these images for the use of our members?
Somewhere I read that the seller of the postcard would be the holder of the copyright - is that true?
Any guidance will be appreciated. Thanks.
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Post by AndyJ »

Hi YojYelesom,

If these are used postcards there may well be two different copyrights involved: that of the publisher, and also the writer of the message on the postcard.
I am assuming that the illustration is a photograph, rather than a graphic work like a McGill cartoon. If that is so, then in most cases the publisher will have owned the copyright in the photograph, but if you are reasonably certain that the photograph was taken before 1945, copyright in the photograph will have expired by now. As you are probably aware it was common in the late 19th and early 20th centuries for people to go to a photographic studio and have portraits taken with the intention that they would be made into postcards by the photographer. In such cases the person who commissioned the portrait session wouild own the copyright and there would be no publishing company involved. However the same rules on the length of the copyright in photographs mentioned above also applied to such privately commissioned photographs.

The text of a personal message on a used postcard is more difficult. In some cases the message is likely to be too banal to qualify for literary copyright. But if the message can be said to express the personality of the author, then literary copyright will apply to the message and it will last for the lifetime of the author (the sender of the card) and for up to 70 years after their death. This means that if you can be reasonably sure that the writer died before 1950, the card with a message will probably be out of copyright. But there is a proviso, and it is one which will apply to other items the society may be thinking of making available on its webiste such as letters and diaries. Such items will not have been published in most cases (ie made available to the public at large for sale or rental). This means that they will remain in copyright until the end of 2039. This due to the way that copyright law used work. Copyright in a work (say a diary) would not commence until such time as the work was lawfully published, meaning that some items could remain in perpetual copyright. More recent legislation (the 1988 Copyright Designs and Patents Act (CDPA)) sought to remove this anomaly by giving such works a fixed 70 year term of protection to start with the day the Act came into force, namely 1 Aug 1989, hence the date on 2039.

If, instead of making digital copies of these items, you put the originals of these items on display, say in a local library or museum, as no copy is being made, copyright in the item is not infringed. However in order to publish digital copies of these items where you have a number of them which you feel may be in copyright today, due to the rules about unpublished works, but you are unable to identify or locate the owner of any such copyright today, you can apply for orphan licences which will indemnify you against a copyright claim should the real owner come forward. More details on how to do this here. Publishing brief extracts from items may be permissible under the fair dealing exception for private study and research (see section 29 CDPA) but this would not allow you to publish complete manuscripts etc.
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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