Hi,
I am in the process of researching a local history book which I hope to get published, based on the history of my home which was originally built as a school (in operation from 1845 to 1911). During the course of this research, I came across a School Log Book which is physically held in my local council's archives. I paid the council a fee which allowed me to take a camera into the archives and photograph the pages of the log book.
The format the book follows is: I have transcribed the key entries from the log book and, where an individual is named, I have researched that individual to determine what became of them. In addition to this, I have accessed the British Newspaper Archives through a subscription, and transcribed certain newspaper articles taking place in the village at the time.
I would like to know if I am infringing any copyright in each of these situations:
1. Transcribing the Log Book entries
2. Publishing a Photo of an individual entry in the log book
3. Transcribing the Newspaper Articles
4. Publishing a Photo of an individual newspaper article
5. Publishing a Photo of an individual which appears online (eg through ancestry.com)
6. Publishing an old photo of the village from other local history books
I fully intend to acknowledge sources but all the above date from 1845 to 1940 at the latest.
Many thanks for any assistance you can give.
Use of transcripts and old images
-
TheBantamBoy
- New Member
- Posts: 3
- Joined: Tue Aug 08, 2023 5:01 pm
Re: Use of transcripts and old images
Hi TheBantamBoy and welcome to the forum,
This sounds like an interesting project. The sources that you have mentioned all present slightly different issues concerning copyright. I think that since the school log books only went up to 1911 we can be reasonably sure that none of the pupils are still alive today so there are no personal data matters we need to worry about. If this was to remain a private project then I would have said there were no significant copyright issues for you to worry about as everything would have fallen within the exception contained in section 29 of the Copyright Designs and Patents Act (CDPA) 1988, because they were for the purpose of private study and research. However this exception does not apply once the compiled research is commercially published. Thus things get considerably more complicated due to publication. Another exception, for the purpose of quotation, may be relevant later when we look at newspaper articles.
Because the log books have never been published, if any copyright applies to them, it continues to this day thanks to the old copyright law dating back to the nineteenth century (more details on this here). I say 'if any copyright applies' because it is doubtful whether they were eligible for copyright in the first place since their content is primarily factual and facts which are not the author's own creation cannot be subject to copyright. However, for the sake of completeness I will continue on the basis that copyright might apply, especially if the log books contain comments or opinions, for instance about a pupil's behaviour or appearance. Such comments are likely to be judged expressions of the writer's creativity and would then be subject to copyright. Normally, for things created before 1989*, copyright would last for the lifetime of the author plus 50 years after their death, but this only applied to works which had been published during the author's lifetime. As already noted, these logbooks have never been published and so the (old) law says that they remain protected until such time as they are lawfully published and then copyright runs for a further 50 years from the end of the year of publication**.
This then raises the question of who is the present day owner of the copyright (presuming that copyright exists). The teachers who completed the logbooks were employees of a school board or similar education body and so it was their employer who would have owned the copyright. Since that particular body probably no longer exists, its successor in the role of education authority for the area will probably be the organisation responsible for agreeing that the books and their contents may be published. Therefore it would be sensible to approach this body for permission on a 'just in case' basis. This may be the local authority in the case of a state school or a church etc in the case of a school previously run by that particular body.
The same issues do not apply to the newspapers since they have been published. Here it is a more straight forward matter of applying the lifetime of the author plus fifty years rule to any individual article. Of course this is actually not at all straightforward since each article will have a different author and you have very little chance of knowing when (or indeed if) they died. For articles which are anonymous life gets easier because the rule then is that copyright lasts for 50 years from the date of publication. In all cases the owner of the copyright will have been the publisher of the newspaper. There are small exceptions to this rule such as letters submitted by members of the public and adverts etc but for all practical purposes I think we can ignore those. The chances are that the papers you have used either don't exist today or their titles have been taken over by another company. You will no doubt have seen the copyright notices splashed all over the BNA website to the effect that BNA do not own the copyright and permission should be sought from the putative owner, while remaining vague about who this might actually be. In many cases, for instance with the national titles, it may be clear who is the current owner but some detective work may be necessary with local papers which have long since shut down. If all else fails and after an exhaustive search you cannot identify the present day owner of copyright, you can apply for an orphan works licence. As you will no doubt face the same problem with several newspapers, it is fortunate that you can submit one orphan works licence application covering up to 30 individual works and only pay a proportionately lower single fee for the application. You can find more details here: Intellectual Property Office Orphan Works Scheme.
So far I've just looked at the overall work itself, such as a logbook or newspaper article. What about transcripts? Since they would be verbatim copies of the original text any transcript would infringe the copyright in the part which had been transcribed. However as I have explained, things which are facts (names, dates, addresses, attendance etc) are not subject to copyright to start with so with the logbooks you can happily use the transcriptions, and indeed photographs or scans of the original pages, provided that you are sure there are no written comments which could arguably be expressions of the author's thought or opinion. Newspaper articles will also contain facts but these facts will lie within text which will clearly be the author's expression and so unless it was a page of racing results or stock exchange prices, the content, even when it is transcribed, will be subject to copyright. So, unless you are sure that the copyright has expired due to the anonymity of the author and publication was more than 70 years ago, you need to get permission or use the orphan works licensing route.
However, it may be that you don't need to use the whole newspaper article. If you only need to quote a couple of sentences about your subject, you should be able to rely on the exception for the purpose of quotation found in section 30(1ZA) of CDPA. To take advantage of this exception your use of the text must be 'fair' in the circumstances and it must be accompanied by an acknowledge of the source, but I imagine you would be doing this anyway. I think it would be acceptable to use a digital image of the part you want to quote, rather than a transcript. However it's not clear as the law stands today if you can use this exception to 'quote' an actual photograph which appeared in the paper, but for reasons I will cover shortly I don't think it is necessary to consider that option in your case.
Lastly we need to look at using other people's photographs. Prior to the CDPA 1988, photographs were always treated differently to other works. Here there was no issue about whether or not the photograph had been published. The rule was very simple. Copyright lasted for 50 years from the date the photo was made. Thus if a photograph was taken of a school class in 1909 and later published in a newspaper in 1980, that photograph would have been out of copyright on 1 January 1960, so you can copy the version you found in the newspaper, even though the text of the accompanying newspaper article may still be subject to copyight today. The same 50 year rule applies to old postcard images, and photographs from private collections if they have been posted on Ancestry. That said, whether it is legal or not, I suggest that common courtesy requires that you ask permission to use a photograph you find on Ancestry etc. People are very protective of such personal items, and rarely appreciate that they may have no legal grounds for objecting to their photos being copied in this way. A second word of warning about digital versions of photographs which you find, for example, on the internet. You have no doubt come across the Francis Frith collection of late nineteenth and twentieth century photographs which feature such things as places of interest, village scenes etc. The vast majority of the original photographs are out of copyright. However the current day owners of the Frith Collection maintain that their digital copies of the originals have a fresh copyright dating from when the 'new' digital copy was made. This is legally dubious since in general there is insufficient human creativity involved in the process of digitization to create a new copyright. However, this has not been tested in court to any extent and so the issue remains unresolved.The government's Intellectual Property Office take the view that in most cases no new copyright will exist. However, be wary of any such digital copy of an old photograph which purports to be subject to copyright, even though you know very well that the original is no longer in copyright. Using the digital version without permission may result in you becoming involved in an unwelcome legal dispute. You don't need to be as careful over things like the digital scans of newspapers found in the BNA. These clearly have no creativity added as a result of the scanning (and the frankly dire optical character recognition process) and I suspect that BrightSolid who undertook the digitizing work would have no interest in trying to make such a claim, since it would obviously fail in court.
So apologies for not answering your questions as succinctly as you posed them, but as you will now appreciate, this is a complicated area of the law and a simple yes or no answer probably wouldn't have been helpful. Please come back with any follow up questions if you have them. Good luck with your project.
* When the CDPA came into force the standard copyright term was the lifetime of the author plus 50 years from the end of his/her year of death. An EU directive in 1995 required that this post mortem term was extended to 70 years. This change affected all works whose copyright term was still running on 1 July 1995, and thus added 20 extra years to them. From this it can be seen that where the author died before 1945 copyright in his or her works would not be affected by the change. Similarly copyright in anonymous works and photographs which both had a fixed term of 50 years, would not have been affected if they were made/published befoe 1 January 1945. Since you say that all your sources are before 1940, this distinction will be important.
** Because this results in the ridiculous situation of some works remaining in perpetual copyright, the CDPA laid down that copyright in all such works would end 50 years from the end of 1989 when the Act came into force, so copyright in all unpublished works of the type mentioned will end on 31 December 2039.
This sounds like an interesting project. The sources that you have mentioned all present slightly different issues concerning copyright. I think that since the school log books only went up to 1911 we can be reasonably sure that none of the pupils are still alive today so there are no personal data matters we need to worry about. If this was to remain a private project then I would have said there were no significant copyright issues for you to worry about as everything would have fallen within the exception contained in section 29 of the Copyright Designs and Patents Act (CDPA) 1988, because they were for the purpose of private study and research. However this exception does not apply once the compiled research is commercially published. Thus things get considerably more complicated due to publication. Another exception, for the purpose of quotation, may be relevant later when we look at newspaper articles.
Because the log books have never been published, if any copyright applies to them, it continues to this day thanks to the old copyright law dating back to the nineteenth century (more details on this here). I say 'if any copyright applies' because it is doubtful whether they were eligible for copyright in the first place since their content is primarily factual and facts which are not the author's own creation cannot be subject to copyright. However, for the sake of completeness I will continue on the basis that copyright might apply, especially if the log books contain comments or opinions, for instance about a pupil's behaviour or appearance. Such comments are likely to be judged expressions of the writer's creativity and would then be subject to copyright. Normally, for things created before 1989*, copyright would last for the lifetime of the author plus 50 years after their death, but this only applied to works which had been published during the author's lifetime. As already noted, these logbooks have never been published and so the (old) law says that they remain protected until such time as they are lawfully published and then copyright runs for a further 50 years from the end of the year of publication**.
This then raises the question of who is the present day owner of the copyright (presuming that copyright exists). The teachers who completed the logbooks were employees of a school board or similar education body and so it was their employer who would have owned the copyright. Since that particular body probably no longer exists, its successor in the role of education authority for the area will probably be the organisation responsible for agreeing that the books and their contents may be published. Therefore it would be sensible to approach this body for permission on a 'just in case' basis. This may be the local authority in the case of a state school or a church etc in the case of a school previously run by that particular body.
The same issues do not apply to the newspapers since they have been published. Here it is a more straight forward matter of applying the lifetime of the author plus fifty years rule to any individual article. Of course this is actually not at all straightforward since each article will have a different author and you have very little chance of knowing when (or indeed if) they died. For articles which are anonymous life gets easier because the rule then is that copyright lasts for 50 years from the date of publication. In all cases the owner of the copyright will have been the publisher of the newspaper. There are small exceptions to this rule such as letters submitted by members of the public and adverts etc but for all practical purposes I think we can ignore those. The chances are that the papers you have used either don't exist today or their titles have been taken over by another company. You will no doubt have seen the copyright notices splashed all over the BNA website to the effect that BNA do not own the copyright and permission should be sought from the putative owner, while remaining vague about who this might actually be. In many cases, for instance with the national titles, it may be clear who is the current owner but some detective work may be necessary with local papers which have long since shut down. If all else fails and after an exhaustive search you cannot identify the present day owner of copyright, you can apply for an orphan works licence. As you will no doubt face the same problem with several newspapers, it is fortunate that you can submit one orphan works licence application covering up to 30 individual works and only pay a proportionately lower single fee for the application. You can find more details here: Intellectual Property Office Orphan Works Scheme.
So far I've just looked at the overall work itself, such as a logbook or newspaper article. What about transcripts? Since they would be verbatim copies of the original text any transcript would infringe the copyright in the part which had been transcribed. However as I have explained, things which are facts (names, dates, addresses, attendance etc) are not subject to copyright to start with so with the logbooks you can happily use the transcriptions, and indeed photographs or scans of the original pages, provided that you are sure there are no written comments which could arguably be expressions of the author's thought or opinion. Newspaper articles will also contain facts but these facts will lie within text which will clearly be the author's expression and so unless it was a page of racing results or stock exchange prices, the content, even when it is transcribed, will be subject to copyright. So, unless you are sure that the copyright has expired due to the anonymity of the author and publication was more than 70 years ago, you need to get permission or use the orphan works licensing route.
However, it may be that you don't need to use the whole newspaper article. If you only need to quote a couple of sentences about your subject, you should be able to rely on the exception for the purpose of quotation found in section 30(1ZA) of CDPA. To take advantage of this exception your use of the text must be 'fair' in the circumstances and it must be accompanied by an acknowledge of the source, but I imagine you would be doing this anyway. I think it would be acceptable to use a digital image of the part you want to quote, rather than a transcript. However it's not clear as the law stands today if you can use this exception to 'quote' an actual photograph which appeared in the paper, but for reasons I will cover shortly I don't think it is necessary to consider that option in your case.
Lastly we need to look at using other people's photographs. Prior to the CDPA 1988, photographs were always treated differently to other works. Here there was no issue about whether or not the photograph had been published. The rule was very simple. Copyright lasted for 50 years from the date the photo was made. Thus if a photograph was taken of a school class in 1909 and later published in a newspaper in 1980, that photograph would have been out of copyright on 1 January 1960, so you can copy the version you found in the newspaper, even though the text of the accompanying newspaper article may still be subject to copyight today. The same 50 year rule applies to old postcard images, and photographs from private collections if they have been posted on Ancestry. That said, whether it is legal or not, I suggest that common courtesy requires that you ask permission to use a photograph you find on Ancestry etc. People are very protective of such personal items, and rarely appreciate that they may have no legal grounds for objecting to their photos being copied in this way. A second word of warning about digital versions of photographs which you find, for example, on the internet. You have no doubt come across the Francis Frith collection of late nineteenth and twentieth century photographs which feature such things as places of interest, village scenes etc. The vast majority of the original photographs are out of copyright. However the current day owners of the Frith Collection maintain that their digital copies of the originals have a fresh copyright dating from when the 'new' digital copy was made. This is legally dubious since in general there is insufficient human creativity involved in the process of digitization to create a new copyright. However, this has not been tested in court to any extent and so the issue remains unresolved.The government's Intellectual Property Office take the view that in most cases no new copyright will exist. However, be wary of any such digital copy of an old photograph which purports to be subject to copyright, even though you know very well that the original is no longer in copyright. Using the digital version without permission may result in you becoming involved in an unwelcome legal dispute. You don't need to be as careful over things like the digital scans of newspapers found in the BNA. These clearly have no creativity added as a result of the scanning (and the frankly dire optical character recognition process) and I suspect that BrightSolid who undertook the digitizing work would have no interest in trying to make such a claim, since it would obviously fail in court.
So apologies for not answering your questions as succinctly as you posed them, but as you will now appreciate, this is a complicated area of the law and a simple yes or no answer probably wouldn't have been helpful. Please come back with any follow up questions if you have them. Good luck with your project.
* When the CDPA came into force the standard copyright term was the lifetime of the author plus 50 years from the end of his/her year of death. An EU directive in 1995 required that this post mortem term was extended to 70 years. This change affected all works whose copyright term was still running on 1 July 1995, and thus added 20 extra years to them. From this it can be seen that where the author died before 1945 copyright in his or her works would not be affected by the change. Similarly copyright in anonymous works and photographs which both had a fixed term of 50 years, would not have been affected if they were made/published befoe 1 January 1945. Since you say that all your sources are before 1940, this distinction will be important.
** Because this results in the ridiculous situation of some works remaining in perpetual copyright, the CDPA laid down that copyright in all such works would end 50 years from the end of 1989 when the Act came into force, so copyright in all unpublished works of the type mentioned will end on 31 December 2039.
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
-
TheBantamBoy
- New Member
- Posts: 3
- Joined: Tue Aug 08, 2023 5:01 pm
Re: Use of transcripts and old images
Hi, thank you for the welcome, and thank you very much for the very detailed response to my enquiry.
Reading through your reply, I have attempted to answer my own questions based on these clarifications!:
1. Transcribing the Log Book entries - The school was founded by The National Society which was (and still is) a branch of the Church of England. However, during the course of the school’s existence, local authorities were gradually ‘taking over’ these schools through making payments to schools based on performance, until eventually the school was closed (in 1911) and all teachers and pupils were transferred to the newly built Council run school. The Durham County Council Archives now hold the physical copy of the Log Books and I’m therefore assuming they are the current owners. The Log Books are filled with comments which are factual e.g. "Jane Smith was late to school again today and was punished" but there are also entries which I suppose could be deemed opinions e.g. "John Smith is always dirty because he comes from an untidy home". I approached the County Archivist explaining how I wish to use the Log Book and I received a response saying “The right to copy, reproduce, publish or exhibit any document held by Durham County Record Office is granted only by specific request and requires the prior consent of the County Archivist.” I therefore submitted a formal request with a sample document showing some log book transcripts and a photo. This was 2 months ago so I have politely nudged them again this week and await their response (a situation not helped by the fact the department are currently moving buildings).
Therefore: I will need to wait and see what response I get back from the Archives and proceed from there - potentially paying a fee or facing the possibility of having to abandon the whole project (after 4 years!).
2. Publishing a Photo of an individual entry in the log book - Same conclusion as above
3. Transcribing the Newspaper Articles - The latest newspaper transcription is from 1915 so with the 50 year rule for anonymous articles, I'm concluding no copyright restrictions exist. There are a couple of named articles from members of the public, one was published in 1854, and the other the author died in 1915. Again, I'm concluding no copyright restrictions exist. I'm also acknowledging the paper title and date, as well as the BNA website.
4. Publishing a Photo of an individual newspaper article - As you point out, the digital images have no creativity added as a result of the scanning so there should be no copyright issue to worry about. As with the newspaper transcriptions, I'm acknowledging the paper title and date, as well as the BNA website.
5. Publishing a Photo of an individual which appears online (eg through ancestry.com) - I have already contacted the persons named as originally sharing each photo on ancestry, those who have responded have agreed to its use or have said its not their photo but can't say where they got it from. I'm acknowledging those who have said 'yes' as a common decency but, as these are all old (pre-1940) photos, I'm concluding no copyright restrictions exist.
6. Publishing an old photo of the village from other local history books - As above, I intend to quote my source but assume no copyright issues.
Am I reasonably accurate with these conclusions?
Thanks,
Reading through your reply, I have attempted to answer my own questions based on these clarifications!:
1. Transcribing the Log Book entries - The school was founded by The National Society which was (and still is) a branch of the Church of England. However, during the course of the school’s existence, local authorities were gradually ‘taking over’ these schools through making payments to schools based on performance, until eventually the school was closed (in 1911) and all teachers and pupils were transferred to the newly built Council run school. The Durham County Council Archives now hold the physical copy of the Log Books and I’m therefore assuming they are the current owners. The Log Books are filled with comments which are factual e.g. "Jane Smith was late to school again today and was punished" but there are also entries which I suppose could be deemed opinions e.g. "John Smith is always dirty because he comes from an untidy home". I approached the County Archivist explaining how I wish to use the Log Book and I received a response saying “The right to copy, reproduce, publish or exhibit any document held by Durham County Record Office is granted only by specific request and requires the prior consent of the County Archivist.” I therefore submitted a formal request with a sample document showing some log book transcripts and a photo. This was 2 months ago so I have politely nudged them again this week and await their response (a situation not helped by the fact the department are currently moving buildings).
Therefore: I will need to wait and see what response I get back from the Archives and proceed from there - potentially paying a fee or facing the possibility of having to abandon the whole project (after 4 years!).
2. Publishing a Photo of an individual entry in the log book - Same conclusion as above
3. Transcribing the Newspaper Articles - The latest newspaper transcription is from 1915 so with the 50 year rule for anonymous articles, I'm concluding no copyright restrictions exist. There are a couple of named articles from members of the public, one was published in 1854, and the other the author died in 1915. Again, I'm concluding no copyright restrictions exist. I'm also acknowledging the paper title and date, as well as the BNA website.
4. Publishing a Photo of an individual newspaper article - As you point out, the digital images have no creativity added as a result of the scanning so there should be no copyright issue to worry about. As with the newspaper transcriptions, I'm acknowledging the paper title and date, as well as the BNA website.
5. Publishing a Photo of an individual which appears online (eg through ancestry.com) - I have already contacted the persons named as originally sharing each photo on ancestry, those who have responded have agreed to its use or have said its not their photo but can't say where they got it from. I'm acknowledging those who have said 'yes' as a common decency but, as these are all old (pre-1940) photos, I'm concluding no copyright restrictions exist.
6. Publishing an old photo of the village from other local history books - As above, I intend to quote my source but assume no copyright issues.
Am I reasonably accurate with these conclusions?
Thanks,
Re: Use of transcripts and old images
Hi again TheBantamBoy,
Yes I think you have condensed my long waffle very accurately. As I said, I am pretty sure the logbooks will not really be entitled to copyright in the first place, but asking for permission as you have done seems the sensible course of action. I hope the archivist gets back to you soon with an answer. I would be surprised if you were charged a fee for this, but I don't know the Durham Archives so things may be different there.
It would a great shame if you felt unable to publish the results of your research. Remember that section 29 only fails to apply if you publish commercially. At the very least you could publish your research on a website, or possibly through a local history society in the area, provided that the copies are not sold for money. That wouldn't stop you asking for a small donation from those who visit your website in order to offset your expenses.
Yes I think you have condensed my long waffle very accurately. As I said, I am pretty sure the logbooks will not really be entitled to copyright in the first place, but asking for permission as you have done seems the sensible course of action. I hope the archivist gets back to you soon with an answer. I would be surprised if you were charged a fee for this, but I don't know the Durham Archives so things may be different there.
It would a great shame if you felt unable to publish the results of your research. Remember that section 29 only fails to apply if you publish commercially. At the very least you could publish your research on a website, or possibly through a local history society in the area, provided that the copies are not sold for money. That wouldn't stop you asking for a small donation from those who visit your website in order to offset your expenses.
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
-
TheBantamBoy
- New Member
- Posts: 3
- Joined: Tue Aug 08, 2023 5:01 pm
Re: Use of transcripts and old images
Good Morning,
My 'polite nudge' with the Records Office seems to have had the desired effect - this morning I have received confirmation that the Archivist has reviewed my request and is happy to grant permission to use transcripts/photo extracts from the School log books for this project, subject to the appropriate acknowledgements. They have also waived their usual reproduction fee of £35 for each image used in a publication, instead asking for a donation in lieu of fees together with a copy of the book for the Record Office library.
Together with your other advice, I feel like things are back on track again!
Many thanks,
Andrew
My 'polite nudge' with the Records Office seems to have had the desired effect - this morning I have received confirmation that the Archivist has reviewed my request and is happy to grant permission to use transcripts/photo extracts from the School log books for this project, subject to the appropriate acknowledgements. They have also waived their usual reproduction fee of £35 for each image used in a publication, instead asking for a donation in lieu of fees together with a copy of the book for the Record Office library.
Together with your other advice, I feel like things are back on track again!
Many thanks,
Andrew
Re: Use of transcripts and old images
Hi Andrew,
That's excellent news. good luck with the project.
Andy
That's excellent news. good luck with the project.
Andy
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