Out of copyright photos in archives.

Advice for those new to the concepts of copyright
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Jason210
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Out of copyright photos in archives.

Post by Jason210 »

I'm interested in discussing the legal situation regarding original photographs and negatives etc that are held in archives, but which are out of copyright. These archives can be public (as museums and libraries) or privately held. It's very common for museums to charge if you wish to get a printed or digital copy of such an image, and have some kind of licensing scheme if you wish to publish. Basically, the images are totally controlled by the museum as if the museum owned the copyright.

I've noticed that on digital markets like eBay, it's common practice for sellers who have purchased digital copies of such archival material to sell prints of them. For example, I've seen a whole collection of plates by Bedford Lemere & Co, held by the National Maritime Museum, offered as photographic 6 x 4 prints by various private eBay sellers. I myself have purchased digital copies of these plates from the museum.

So this raises the question, what is the legal status of prints made from these digital sources? If it was illegal to sell them, it we wouldn't see them on eBay, right?

It also raises another question in my mind. If I bought a such print, then scanned it, what then?
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AndyJ
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Re: Out of copyright photos in archives.

Post by AndyJ »

Hi Jason.

There are two separate things going on here: copyright and permission to access.

For photographic prints or negatives etc which are out of copyright clearly there is no problem with making copies, for instance by making new prints from old negatives. If a print or negative is digitally scanned or digitally photographed, it is extremely unlikely that a new copyright will have been created by that digitisation, although some museums do claim this where very high resolution digital images have been created. However, they also go to great lengths to avoid having such claims tested in court, because they want to rely on the income from selling the digital copies, and a court ruling that went against this practice would be very damaging to them. The UK Intellectual Property Office have issued their guidance on this topic (see the fifth section here) which says, in most cases, a new copyright will not come into existence through making a digital copy.

Restricting access to an original work is an entirely separate matter. If a museum or archive holds the only copy of the original work, they are perfectly entitled to charge a fee to access the work and make a copy of it; equally they may set out their own terms and conditions about what may be done with any copies - strictly as a condition for granting permission to access the work. They can even refer to this permission as a licence. But it is not a copyright licence. In fact, the term copyright should not be used at all in this context although it frequently is. In many ways, restricting access to a work is somewhat similar to the conditions for entering a music venue, football match or club: the proprietor is at liberty to set their own standards, for instance a dress code, a sobriety test or a ban on alcohol etc being brought onto the premises. Such conditions come under contract law, meaning that if you are in breach of the terms, the contract will be broken and you may be asked to leave even though you have paid a entry or access fee. Enforcing a breach of contract after you have already left the premises is very difficult. This means that although there may be terms which restrict your use of a legally acquired digital copy of an out of copyright work, in practice the museum or archive has very limited options about the action it can take. The one thing which is clear is that they cannot resort to copyright law to enforce their terms and condtions.

You may find this Wikipedia article of interest: National Portrait Gallery and Wikimedia Foundation copyright dispute
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Jason210
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Re: Out of copyright photos in archives.

Post by Jason210 »

Thanks for the help. It certainly clarifies things.

If someone legally publishes a digital image on the Internet that is out of copyright, but which they obtained legally from a museum archive through a contract license, what is stopping anyone else from copying that image and publishing it, assuming there is no physical restriction?
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AndyJ
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Re: Out of copyright photos in archives.

Post by AndyJ »

There is really no legal way to prevent that. That tends to be why many museums and archives put a copyright notice on their digital images to deter such third party copying, even though they know that it is highly unlikely that they could successfully bring a claim for copyright infringement. A bit like putting up dummy CCTV cameras to deter shoplifting.
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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