Copyright (UK) of antique papers

[Cath3]

Hi all

I do scrapbooking as a hobby, and was considering turning this into a project that could potentially bring some extra income. I've some old books, magazines, among other stuff, ranging from the 1880s to 1930s, and I thought doing some ephemera packs (loose pages of newspapers, magazines, etc.) and sell it on eBay and/or Etsy. The idea was also to make some scans of handwritten letters, postcards, posted envelopes and anything in the books/papers that could already be in the public domain. Unless I’m wrong, I’m almost certain that I can sell individual pages of books (old or new), but is it ok to scan parts of book pages, illustrations, handwritten letters, receipts, etc and sell them digitally or publish them in a book form? This is something I’ve seen people doing on both shops, but I still worry about making, unknowingly, any copyright infringement. I’ve read that the British Library keeps a safe date of 140 years ‘when determining when a newspaper can be considered to be entirely out-of-copyright’. Should I use this as a rule of thumb for all kinds of ephemera, or rather approach the material I have on a case-by-case basis? Many thanks in advance for any help

[AndyJ]

Hi Cath and welcome to the forum,

You are right to be concerned that scanning and then selling copies of old material could involve infringing copyright. Envelopes with addresses on and old receipts are probably not something you need to worry about, but for anything more 'creative' such as personal letters, book pages and so on will have been subject to copyright, and thus you need to be sure they are out of their copyright protection before copying and re-publishing them. In general copyright lasts for the lifetime of the person who created the work, plus a further 70 years after their death. Hence the rule of thumb that anything over 140 years old is now likely to be in the public domain and you can use it however you wish.

However there is a caveat which you need to bear in mind when it comes to unpublished items which were created before 1 August 1989 - things like old personal letters or diaries for instance. The reason is that prior to that date, the previous legislation concerning copyright said that copyright did not begin to run until a particular work was lawfully published. If the item was not published during the lifetime of its author, but an heir di authorise publication later on, the copyright term would be 50 years from the date of publication. Private letters etc are rarely published and so, in theory at least, they remain in a kind of limbo where the copyright in them remains in perpetuity since the only person who can authorise their lawful publication - either the author or more likely, their heir - is often unknown or uncontactable. However this same obscurity may also mean that if you were to go ahead and publish one of these articles as ephemera, it is highly unlikely that the heir of the author would ever be aware that you had done this and in any case they probably wouldn't know that copyright might still exist.

If you can be fairly sure that the author of any work you are interested in died more than 70 years ago, then you don't need to get permission to copy their work and sell it. Furthermore, anything like a receipt or old train ticket etc which doesn't have a human author as such will not be subject to copyright in the first place as it wouldn't meet the threshold of originality.

[Cath3]

Thanks for the quick reply Andy, you explain these intricacies very well Indeed, the copyright status of these personal handwritten letters (I buy them at antique shops or markets) is quite interesting; there's this permanent uncertainty about them since they almost certainly have never been published (hence, as you say, the copyright being ‘on hold’ until they are published in some way), still it’s difficult to imagine how today they would become ‘known’ or identifiable to any potential heir (would they even know that the letter was written/sent? Because the letters were probably discarded by the addressee (or their heirs), not the other way around). For sure, in theory, anything's possible, but maybe the probabilities in these cases are a bit remote (and obscure!) regarding copyright. Of course, ultimately, these were private correspondence, and in a way, I feel it’s not my right to make these letters public, I just find them aesthetically pleasing, and the idea was to capture only a small section of the letter to convey a kind of pattern/texture (I’m not interested in the information therein, but I guess when it comes to copyright, it doesn’t matter if the material published is partial or whole, right?) One more thing, if that’s ok, with stamps and their design (either loose or glued to envelopes), do I approach them in the same way as published illustrations (as in a book or newspaper)? Regarding the old receipts, I haven't mentioned, but many of these have quite elaborate designs on the header, which means there is obvious copyright on this part of the receipt, is that so? Thank you very much for your help.

[AndyJ]

Hi Cath,

On the subject of unpublished items such as personal letters I thought it was necessary to differentiate between the legal situation and the actual likelihood that you might face any claim of infringement in these circumstances. However there is another approach. You can apply for what is known as an orphan works licence from the UK Intellectual Property Office (details here). However I don't think it would be a practical solution for you due to the non-trivial cost and the extra research you would have to carry out before applying.

You mention the ornate nature of the receipts. While someone will have undoubtedly designed these and so each item might be treated as a work of artistic craftsmandship, the fact that the author or artist is anonymous means that a different part of the Copyright Designs and Patents Act applies, namely section 12 (3). This provision means that,if you were concerned about copyright, you only have to ensure that 70 years have passed since the date on the receipt, as opposed to the longer rule of thumb of 140 years.

[Cath3]

Thanks Andy. That’s interesting because what you say there, regarding the authorship of a work of artistic craftsmanship, in my opinion, goes to the heart of the question when trying to establish the copyright on some kind of material. How does one determine if the author is known? There's a nice flowchart on The National Archives website (https://cdn.nationalarchives.gov.uk/doc ... rights.pdf) to help determine the copyright status of a work, and the first question is, ‘Is the author known?’ What does this actually mean? Of course, some authors are widely known, others not so much, but easy to look up online, and others may be more difficult to find out, which doesn’t mean they’re totally unknown, maybe just a case of less information available (there’s always the possibility someone knows who that author is!). I have a 1934 newspaper with lots of vintage ads, most of them featuring great illustrations (another example would be Victorian greeting cards; a few of them even have ‘copyright’ written on them). Should the people who designed these kinds of illustrations/ads be considered anonymous artists/authors? Sometimes, it can be quite tricky to answer this question in the first place.

[AndyJ]

I mentioned the orphan works licensing scheme in an earlier reply. The definition of an orphan work is one whose copyright owner is either not known or cannot be located. A work is then only truly an orphan after a diligent search for the copyright owner has been carried out and has failed to either identify or locate the owner. A similar definition might apply when deciding if an author is unknown. I think the easiest way of approaching the issue to ask whether the author themself might have expected to be identifiable as result of their work. The writer of a book, magazine article or song, or an artist painting portraits or illustrating a book will both almost certainly have expected to be acknowledged as the author of their work. The artist behind the graphics for a magazine or billboard advert, whilst obviously known to his colleagues, would probably have had less expectation of being recognised as the author of his work, especially if it formed part of a larger compilation of the work of several people, for instance a photographer, a colourist and a typeface designer. The less talent involved in creating the work, as perceived by the public at large, the less likely it is that the author would be known when the work was first published. The design of a heading for a receipt or a theatre handbill, for instance, would be barely considered as a creative work. The other aspect to consider is whether the work was created in the course of a person's job, for which he or she received a wage. In that case the owner of the copyright would be the employer, and so in the majority of cases the actual author would have no expectation of recognition. There are of course exceptions, such as a journalist who gets a byline on the articles they write, but these aside, I think that most work within this category would generally be treated as anonymous or of unknown authorship, unless it was clear from a credit that this was not the case.

[Cath3]

Thanks Andy, you’re a legend! It has definitely become much clearer now how I should approach the various kinds of material I have and what to look for if I decide to do these projects. Also, this forum is super useful, there are so many posts with valuable information, and your helpful advice on most of them is nothing short of impressive. I’ll keep educating myself on these issues as I think it’s important to be aware of what I’m doing