Public Doman newspapers

'Is it legal', 'can I do this' type questions and discussions.
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Public Doman newspapers

Post by tackler7 »

I am a frequent user of the British Newspaper Archive.

They have noted some newspapers as being in the Public Domain and I believe you can view these on the site without payment*. However, other newspapers of the same date are shown as being in copyright "Image © THE BRITISH LIBRARY BOARD. ALL RIGHTS RESERVED."

I don't understand why one but not the other. I did think it was the BNA/BL claiming that the scanning of the paper brought it under some kind of new copyright but both are scanned so this explanation doesn't ring true.

Can you provide an explanation? When would a UK published newspaper generally fall out of copyright?

Thank you very much.

* For example - Glasgow Herald - Monday 01 January 1900 - shown as being in public domain v Scottish Referee - Monday 01 January 1900 shown as being in copyright.
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Re: Public Doman newspapers

Post by AndyJ »

Hi tackler,

Welcome back to the forums.

Copyright with regard to newspapers and magazines etc is complicated, which is not to say that copyright is easy in all other cases! A newspaper is treated in UK law as a compilation but this in itself doesn't tell us much about the duration of copyright in a specific edition of a newspaper.

The short answer is that there is no one date, say relative to the date of publication, after which a newspaper is deemed to be out of copyright. There is a special copyright in the typographical layout (see section 8 CDPA) which lasts for 25 years from the end of the year of publication, but that is virtually meaningless in the wider context and it would only protect items which were otherwise not eligible for copyright (eg sports results or share prices).

All that the term compilation tells us is that each of the individual articles, photographs, editorials, reader's letters, adverts etc within a particular edition will have its own discrete copyright term based on the lifetime of the author of that piece. It also doesn't tell us who owns the copyright although that is not so important at this stage. To take a real world example, if we assume that the youngest age of a contributor to a newspaper is about 18 (obviously they could be younger where a teenage magazines was concerned) and that contributor lives to be 80 years of age, the contribution of that person could remain in copyright for 132 years after publication. The article adjacent to the young person's might be by an anonymous author and so copyright in it only lasts for 70 years from the end of the year of publication, and so on.

The situation is made more complicated by the fact that over the 132 years during which our hypothetical piece might have been in copyright, four different pieces of copyright legislation will have applied to it (or five if we include the EU Copyright Term Directive). If we merge my example of an 18 year old cub reporter on his local newspaper with your example of the Glasgow Herald edition of Monday 01 January 1900, we can see that the reporter would have died in 1961 or 1962, and we would then have to add the 70 year post mortem period to the overall copyright term, not the previous 50 year pm period provided for by the 1911 and 1956 Copyright Acts. However the adjacent article by the anonymous author would have ceased to be in copyright on 1 January 1951 because the old rules would have applied to it and it was out of copyright before the change to 70 years came into force in 1995.

That is the legal position. Practically speaking, is anyone going to quibble over using a copy of a newspaper which is 122 years old? Well yes, Brightsolid, who are the digitizers of the British Newspaper Archive, may well feel the need to plaster their website with copyright notices just to be on the safe side, but the "Image © THE BRITISH LIBRARY BOARD. ALL RIGHTS RESERVED" you mention is almost certainly without any legal value at all. Given the manner in which the newspapers are scanned with virtually no human intervention beyond turning the pages, there is no originality (in the copyright sense) in the images which are produced*. It is arguable that where the images are then scanned and converted to digitized text there may be some human intervention for quality control purposes (in my experience the quality is at a very low stadard) that has no bearing on the preceding step of making the image, and can't be used to justify a claim of a new copyright coming into existence. And let's be clear, the British Library may own the physical copies of the newspapers due to their function as a Legal Deposit Library, but that confers on them absolutely no right to claim copyright either in the physical newsaper or the digitial image of that paper.

I dismissed the matter of copyright ownership earlier. But I should say a little bit about that too. Anything produced by employees of the newspaper (sub-editors, reporters, staff photographers etc) will belong the newspaper publisher by virtue of section 11(2) CDPA and the equivalent sections in earlier Acts. Anything which was commissioned by the newspaper may well also fall within the same terms as section 11(2), but for any submissions which were unsolicited ( eg readers' letters) copyright will have remained the property of the author. Theoretically, therefore, there is no one person you can go to in order to obtain permsiion to reproduce a page from a newspaper if it contains a mixture of items from different sources. In practice the newspaper would unilaterally assume that it was the copyright owner and in more modern times it will assign the right to licence the copying of articles etc to the Newspaper Licensing Agency. The NLA cannot supply licences for anything published before 1996.

If you are in any doubt (and I suspect there will always be some doubt for any newspaper published within the twentieth century) then it is best to seek permission, and if you can't find a putative copyright owner, apply for an orphan works licence as this will indemnify you against any claims for infrngement. IPO Orphan Works Licensing Scheme)

* See section 5 of this Copyright Notice produced by the Intellectual Property Office on the subject: Copyright notice: digital images, photographs and the internet
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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