I am researching the history of a house and its occupants. I aim to write a small book, hard copy only, giving copies to the current owners and a few neighbours and friends. As various aspects of social history are illustrated through these families’ lives, I would also like to offer copies to local historical interest groups. I would not be selling the book.
Nearly all of my information has come through FindMyPast and the British Newspaper Archives. I am struggling to make sense of the copyright or contract law as applies to information from these sources.
FindMyPast states that you may not use their information “to create your own work such as databases, articles, blogs, or books, or copy or reproduce the Records (either in whole or in part), or publish them, for a purpose other than personal use, without our prior written permission (and/or that of the Licensor of the Records).”
Is what I am planning personal use?
The information from censuses, over 100 years ago, and births, deaths and marriages data, are all public knowledge. How can they “own” this information? If I also get the same information from another source, does this get round the problem?
Copyright has expired for most of the newspaper quotes I would like to use. For those which haven’t expired, I would comply with copyright law, using only short quotes under the section 29 exception rule, and attributing the quotes. Do the BNA have more restrictive rules? I’m struggling with the information on their websites, some of which seems to be contradictory. If necessary I could go in person to the British Library, but it is quite far for me.
A separate question I have is in regards to a photograph, originally in a book published in 1895. The book was recently reprinted by the British Library. Does the copyright date from the original book, or the reprinting? Also old photographs and postcards, taken before 1944, but recently published in books – can I copy these or should I seek permission?
Family history
Re: Family history
Hi starling and welcome to the forum.
The issue you raise is a complex one. As you mention it encompases copyright law and contract law, but it also includes database law and that strange variant of copyright which is unique to Britain and some of its former colonial possessions, namely Crown Copyright.
As you will understand FindMyPast and Ancestry etc invest a great deal of money in finding new sources and digitizing them, and they not unreasonably want to protect that investment. They do this through the terms and conditions of membership from which you have quoted. As you indicate, this comes under the heading of contract law. You may only use they information they supply for the specified purposes and if you fail to comply they may have grounds to sue you for breach of contract, although I am fairly certain that would only happen in the most extreme cases. In addition to conttract law, their resources are protected to a certain extent by database right. This is an entirely separate intellectual property right which sets out to protect the investment expended by a database owner in creating the structure and populatiing the database with data. In this context 'Investment' includes any investment, whether of financial, human or technical resources. It is immaterial whether the data is also subject to other restrictions such as copyright. You can read all about database right in the secondary legislation which created it: The Copyright and Rights in Databases Regulations 1997 (SI 1997/3032).
Let's now turn to where copyright may still apply to seemingly old data, which is perhaps available from other sources as well as FindMyPast. A good example is the census which you mention. What we actually see in the censuses, other than for 1911 and 1921, are the enumerator's consolidation sheets, and since the enumerators were employed by the government at the time to help carry out the census this information is rightly covered by Crown Copyright. Each page of the facsimilie copies shows a copyright notice to that effect. Crown Copyright is explained in section 163 of the Copyright Designs and Patents Act 1988, but the important bit for current purposes is contained in subsection (3)
Next comes the information from other sources such as the newpapers. Generallly speaking this will be subject to the normal copyright term of the lifetime of the author plus 70 years. This makes it tricky when dealing with newspapers because they are a compilation of a number of items all by different authors each with different dates of death, assuming they are actually dead. As a rule of thumb, if a newspaper item was published over 120 years ago, you can usually assume its contents are out of copyright. For anything more recent, it's best to seek permission unless one of the exceptions (see next paragraph) applies. With most printed materials optical character trecognition is used to create the indexes, so it is less likely that copyright can be claimed for these transcriptions which lack any appreciable human intervention. For other sources such as old personal letters or diaries there is a further complication which relates to unpublished works. For anything created before 1 August 1989, apart from old photographs which are a special case, the applicable copyright term only commences with the lawful publication of the work. In most cases this will just mean the post mortem element (50 or 70 years) will apply from the date of publication, or an absolute end date of 31 December 2039, whichever is the sooner. As I think you know, photographs made before 1945 have as special term of copyright of 50 years from the date the photograph was taken, and then ceases, irrepective of any publication date. Photographs made after 1 January 1945 are subject to the lifetime of photographer plus 70 years.
Exceptions of Copyright. I know you are aware of these, but for the benefit of anyone else with a similar question here's a brief explanation of how this works. All copyright is subject a set of special exceptions under UK law. The main one in this context is found in section 29 of the CPDA, as you mention, namely for the purposes of research and private study. It is important to note that the overall framework for the exceptions is that they only apply to 'fair dealing' in the copyright work or any extract from it. This means that no more than is strictly nescessary for the specific purpose of the research etc may be copied, and the copy must be accompanied by a full citation of the source. This is generally not a problem as genealogists and historians usually quote their sources anyway. The last restriction on the use of section 29 is that there should be no commercial publication of the quoted part. Since you have already said that you don't intend to sell your book, this exception will be particularly helpful to you as a means of dealing with copyright, say with items from old newspapers where copyright seems likely to still exist. However it doesn't help overcome FMP's or BNA's terms of service or database right, so care is needed.
And finally you mentioned the photograph in the book which has been republished by the British Library. Republication in facsimile format (ie the pages of the old book have merely been digitally photographed) will not create a new copyright in the contents since there will be insufficient new material added by the second publisher. However if the second publisher adds a new preface or commentary or other text, then these parts alone will have a new copyright. The same applies to digitally copied postcard photographs. You will have found that companies like Francis Frith like to claim copyright on all their old stock even though much of this predates 1945, when we know copyright in the original work no longer applies. They do this as a deterrent because it is not illegal to put a false copyright notice on something. They would no doubt say that their reproductions involve a level of skill and care which warrants a new copyright, but the UK Court of Appeal has recently confirmed that this is not the relevant test, and that only the inclusion of elements of the new 'author's' creativity and personality in the digital copy would lead to a new copyright. Inevitably if Frances Frith tried to take anyone to court over an allegation of infringement of one of their reproductions, they would fail. That is not to say they wouldn't send out a stiffly worded letter or two threatening dire things!
I hope this clarifies things a bit. The bottom line is, if you are entirely sure you are free to quote or reproduce something (say, using section 29) go ahead. But if in doubt, always seek permission as it is usually freely given especially where public bodies are concerned.
The issue you raise is a complex one. As you mention it encompases copyright law and contract law, but it also includes database law and that strange variant of copyright which is unique to Britain and some of its former colonial possessions, namely Crown Copyright.
As you will understand FindMyPast and Ancestry etc invest a great deal of money in finding new sources and digitizing them, and they not unreasonably want to protect that investment. They do this through the terms and conditions of membership from which you have quoted. As you indicate, this comes under the heading of contract law. You may only use they information they supply for the specified purposes and if you fail to comply they may have grounds to sue you for breach of contract, although I am fairly certain that would only happen in the most extreme cases. In addition to conttract law, their resources are protected to a certain extent by database right. This is an entirely separate intellectual property right which sets out to protect the investment expended by a database owner in creating the structure and populatiing the database with data. In this context 'Investment' includes any investment, whether of financial, human or technical resources. It is immaterial whether the data is also subject to other restrictions such as copyright. You can read all about database right in the secondary legislation which created it: The Copyright and Rights in Databases Regulations 1997 (SI 1997/3032).
Let's now turn to where copyright may still apply to seemingly old data, which is perhaps available from other sources as well as FindMyPast. A good example is the census which you mention. What we actually see in the censuses, other than for 1911 and 1921, are the enumerator's consolidation sheets, and since the enumerators were employed by the government at the time to help carry out the census this information is rightly covered by Crown Copyright. Each page of the facsimilie copies shows a copyright notice to that effect. Crown Copyright is explained in section 163 of the Copyright Designs and Patents Act 1988, but the important bit for current purposes is contained in subsection (3)
From this we can see that the census data up to 1891 is now out of Crown Copyright, but the three later census are still covered by it. The part where FMP and other sites have a stronger claim to copyright is in the transcriptions they provide. These are new works for copyright purposes as they are akin to translations. Although transcribers are told to only write down what they see (and therefore in theory are only copying without adding anything new) in fact, the task of reading old handwriting is rarely that simple and so inevitably the transcriber adds his or her own creativity to the process - sometimes to the extent of transcribing utter gibbberish.(3) Crown copyright in a literary, dramatic, musical or artistic work continues to subsist—
(a) until the end of the period of 125 years from the end of the calendar year in which the work was made, or
(b) if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.
Next comes the information from other sources such as the newpapers. Generallly speaking this will be subject to the normal copyright term of the lifetime of the author plus 70 years. This makes it tricky when dealing with newspapers because they are a compilation of a number of items all by different authors each with different dates of death, assuming they are actually dead. As a rule of thumb, if a newspaper item was published over 120 years ago, you can usually assume its contents are out of copyright. For anything more recent, it's best to seek permission unless one of the exceptions (see next paragraph) applies. With most printed materials optical character trecognition is used to create the indexes, so it is less likely that copyright can be claimed for these transcriptions which lack any appreciable human intervention. For other sources such as old personal letters or diaries there is a further complication which relates to unpublished works. For anything created before 1 August 1989, apart from old photographs which are a special case, the applicable copyright term only commences with the lawful publication of the work. In most cases this will just mean the post mortem element (50 or 70 years) will apply from the date of publication, or an absolute end date of 31 December 2039, whichever is the sooner. As I think you know, photographs made before 1945 have as special term of copyright of 50 years from the date the photograph was taken, and then ceases, irrepective of any publication date. Photographs made after 1 January 1945 are subject to the lifetime of photographer plus 70 years.
Exceptions of Copyright. I know you are aware of these, but for the benefit of anyone else with a similar question here's a brief explanation of how this works. All copyright is subject a set of special exceptions under UK law. The main one in this context is found in section 29 of the CPDA, as you mention, namely for the purposes of research and private study. It is important to note that the overall framework for the exceptions is that they only apply to 'fair dealing' in the copyright work or any extract from it. This means that no more than is strictly nescessary for the specific purpose of the research etc may be copied, and the copy must be accompanied by a full citation of the source. This is generally not a problem as genealogists and historians usually quote their sources anyway. The last restriction on the use of section 29 is that there should be no commercial publication of the quoted part. Since you have already said that you don't intend to sell your book, this exception will be particularly helpful to you as a means of dealing with copyright, say with items from old newspapers where copyright seems likely to still exist. However it doesn't help overcome FMP's or BNA's terms of service or database right, so care is needed.
And finally you mentioned the photograph in the book which has been republished by the British Library. Republication in facsimile format (ie the pages of the old book have merely been digitally photographed) will not create a new copyright in the contents since there will be insufficient new material added by the second publisher. However if the second publisher adds a new preface or commentary or other text, then these parts alone will have a new copyright. The same applies to digitally copied postcard photographs. You will have found that companies like Francis Frith like to claim copyright on all their old stock even though much of this predates 1945, when we know copyright in the original work no longer applies. They do this as a deterrent because it is not illegal to put a false copyright notice on something. They would no doubt say that their reproductions involve a level of skill and care which warrants a new copyright, but the UK Court of Appeal has recently confirmed that this is not the relevant test, and that only the inclusion of elements of the new 'author's' creativity and personality in the digital copy would lead to a new copyright. Inevitably if Frances Frith tried to take anyone to court over an allegation of infringement of one of their reproductions, they would fail. That is not to say they wouldn't send out a stiffly worded letter or two threatening dire things!
I hope this clarifies things a bit. The bottom line is, if you are entirely sure you are free to quote or reproduce something (say, using section 29) go ahead. But if in doubt, always seek permission as it is usually freely given especially where public bodies are concerned.
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
Re: Family history
Thank you for your extraordinarily detailed reply. It is even more difficult and complicated than I had foreseen. When I've had time to work through your information I may well have more questions, thanks.