Hi pilax,
I don't think there have been any test cases involving publication right, either in the UK or at the level of the Court of Justice of the EU (CJEU), so we can only speculate about where the onus of proof would lie. However, my instinct would be that it was up to a defendant to show that the work in question had previously been published. And what is more, the earlier publication would have had to have been done 'with authorisation' (see Regulation 16(3) of the Copyright and Related Rights Regulations 1996. The regulation goes on to explain that "In relation to a time when there is no copyright in the work, an unauthorised act means an act done without the consent of the owner of the physical medium in which the work is embodied or on which it is recorded."
As you indicate, proving a negative is very difficult, and so it would be a bit unfair to put the onus of the publisher! Nonetheless, I suspect that the court would want to hear some evidence from the publisher as to why they thought the photograph (or whatever kind of work) was previously unpublished, and how the publisher came by the work.
Old photos/postcards
Re: Old photos/postcards
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: Old photos/postcards
Thanks for that. I just wonder if the defendant said that he copied the image from a website or a library book, would it not throw the onus back on the publisher to prove that that was impossible, ie. he had the original negative and some kind of proof from the photographer that it had never been previously used. If the original image had been around say for a hundred years it might be a very brave publisher who would take such a case to court.
Re: Old photos/postcards
Hi pilax,
By definition, any photograph which was subject to publication right would be fairly old because the period of copyright in it must have ended for the right to be applicable. This means that there could well be uncertainty about whether or not prior publication had occurred earlier in the period during the photograph's existence. The length of the period will, in most instances, mean that the original has been owned by more than one individual and so unless each such owner can be contacted and can say that no publication occurred during their respective period of ownership, it would be hard to provide satisfactory evidence that no prior publication had taken place. As you imply, there is a further complication in that the photographer could have made any number of prints made from a single negative. These prints could then all have separate owners, any one of whom might have published the photograph, either with or without the permission of the copyright owner*.
Clearly the person claiming publication right must have some reasonable ground for saying that there had been no prior publication, such as an affidavit from a previous owner of the physical work or an archivist who could aver that the work had only ever been in a private collection of the photographer, or some similar provenance.
On the other hand it would be a relatively simple matter for a defendant to show that prior publication had occurred, by producing in evidence that publication. In this context, a publication online might be problematic because of the difficulty in proving (a) when that publication took place and (b) that the prior publication was an authorised one as required by Regulation 16(3). To expand on what I mean about (a), let's assume that P claims to first publish the photograph in a book in 2010; to do this he must first arrange to have the photograph scanned in order for it to be printed. This requires physical access to the photograph. Another person D buys a copy of the book containing the image and scans the page of the book and puts the resulting image on D's website. D can change the creation date of his digital image so that it looks like it was created in, say, 2009. At first glance it would then appear to show that D had published the image before P's publication, and thus P's claim to publication right was invalid. The onus would then be on P to show that D's image had not in fact been published in 2009, or even if it had, the publication was not authorised per Reg 16(3).
Bear in mind that in civil cases the standard of proof is on the balance of probabilities, ie only slightly more likely than less likely to be the truth.
* Things get even more difficult if the photograph was one that had been commissioned prior to the 1956 Copyright Act because in that instance the person who commissioned the photograph would usually be the first owner of the copyright, and not the photographer (see section 5(1)(a) of the 1911 Copyright Act). For example Mr C commissions a photographer to take photographs at the 1913 wedding of C's daughter. One of the photographs is of the guests at the wedding. C owns the copyright and arranges for 30 copies of it to be made and given to family members who attended the wedding. He also sends a copy to the local newspaper to illustrate a news story about the wedding. This would be an authorised publication. Alternatively, later but while the photograph is still in copyright, C's sister S publishes a biography of her brother C, and includes a copy of the photograph in the book as it contains many of the family members. She does not seek C's permission because he is already dead. This would be an unauthorised publication, unless S had inherited C's copyright when he died.
By definition, any photograph which was subject to publication right would be fairly old because the period of copyright in it must have ended for the right to be applicable. This means that there could well be uncertainty about whether or not prior publication had occurred earlier in the period during the photograph's existence. The length of the period will, in most instances, mean that the original has been owned by more than one individual and so unless each such owner can be contacted and can say that no publication occurred during their respective period of ownership, it would be hard to provide satisfactory evidence that no prior publication had taken place. As you imply, there is a further complication in that the photographer could have made any number of prints made from a single negative. These prints could then all have separate owners, any one of whom might have published the photograph, either with or without the permission of the copyright owner*.
Clearly the person claiming publication right must have some reasonable ground for saying that there had been no prior publication, such as an affidavit from a previous owner of the physical work or an archivist who could aver that the work had only ever been in a private collection of the photographer, or some similar provenance.
On the other hand it would be a relatively simple matter for a defendant to show that prior publication had occurred, by producing in evidence that publication. In this context, a publication online might be problematic because of the difficulty in proving (a) when that publication took place and (b) that the prior publication was an authorised one as required by Regulation 16(3). To expand on what I mean about (a), let's assume that P claims to first publish the photograph in a book in 2010; to do this he must first arrange to have the photograph scanned in order for it to be printed. This requires physical access to the photograph. Another person D buys a copy of the book containing the image and scans the page of the book and puts the resulting image on D's website. D can change the creation date of his digital image so that it looks like it was created in, say, 2009. At first glance it would then appear to show that D had published the image before P's publication, and thus P's claim to publication right was invalid. The onus would then be on P to show that D's image had not in fact been published in 2009, or even if it had, the publication was not authorised per Reg 16(3).
Bear in mind that in civil cases the standard of proof is on the balance of probabilities, ie only slightly more likely than less likely to be the truth.
* Things get even more difficult if the photograph was one that had been commissioned prior to the 1956 Copyright Act because in that instance the person who commissioned the photograph would usually be the first owner of the copyright, and not the photographer (see section 5(1)(a) of the 1911 Copyright Act). For example Mr C commissions a photographer to take photographs at the 1913 wedding of C's daughter. One of the photographs is of the guests at the wedding. C owns the copyright and arranges for 30 copies of it to be made and given to family members who attended the wedding. He also sends a copy to the local newspaper to illustrate a news story about the wedding. This would be an authorised publication. Alternatively, later but while the photograph is still in copyright, C's sister S publishes a biography of her brother C, and includes a copy of the photograph in the book as it contains many of the family members. She does not seek C's permission because he is already dead. This would be an unauthorised publication, unless S had inherited C's copyright when he died.
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: Old photos/postcards
Thanks once again. Given all that you have said, it is perhaps not surprising that this hasn't been tested in the courts. Great website!
Re: Old photos/postcards
Yes. I have never seen a real life instance of anyone claiming this right, let alone litigating over it. There have probably been examples of the use of publication right but they have been portrayed as copyright.pilax23 wrote: Thu Jul 23, 2020 7:17 am Given all that you have said, it is perhaps not surprising that this hasn't been tested in the courts.
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: Old photos/postcards
Hi Andy, I've got stuck on the 'reviving' of photos after the 1995 legislation. Do you think this paragraph, from Dacs.org.uk, is correct? And was revival automatic or did the photographer have to do something?
"Whether copyright can be revived in old photographs
The 1995 Regulations allowed for the copyright in some old photographs to be "revived" if they were in copyright somewhere in the European Economic Area (EEA) as of 1 July 1995.
For example, if a photograph was taken in 1930 in the UK and the photographer died in 1940, then under the 1911 Copyright Act and until the 1995 Regulations were introduced into UK law, copyright in such a photograph would have expired in 1980.
Some European territories such as Germany already protected photographs for the life of the photographer plus 70 years. If this new term of copyright protection were applied to the photograph, then copyright would not expire until 2010.
This meant that although the photograph had been in the public domain since 1980, its copyright could be "revived"."
"Whether copyright can be revived in old photographs
The 1995 Regulations allowed for the copyright in some old photographs to be "revived" if they were in copyright somewhere in the European Economic Area (EEA) as of 1 July 1995.
For example, if a photograph was taken in 1930 in the UK and the photographer died in 1940, then under the 1911 Copyright Act and until the 1995 Regulations were introduced into UK law, copyright in such a photograph would have expired in 1980.
Some European territories such as Germany already protected photographs for the life of the photographer plus 70 years. If this new term of copyright protection were applied to the photograph, then copyright would not expire until 2010.
This meant that although the photograph had been in the public domain since 1980, its copyright could be "revived"."
Re: Old photos/postcards
Hi zxzoomy,
This is a really difficult question to answer with confidence, and I have talked about this a few times on the forums. The problem is that the EU legislation in unclear on the very narrow aspect of what is meant by 'in copyright somewhere in the European Economic Area'. If photograph was created in Germany then Germany would be the country of origin, and German law would set the rules for the length of time copyriight ptreotection should last, and due the various international treaties such as the Berne Convention, another country is bound to protect the work to whichever is the lower term between what German law stipulates, and what is stipulated by the country where a claim is being brought. This is known as the rule of the least term. However the EU overuled this provision because it wanted to achieve harmony in the market between its member states, hence the wording quoted above.
However, let's take a look at two hypothetical cases. The first example involves a photograph taken by Uncle John on a family holiday in Blackpool in 1943. The country of origin was Britain and the term which then applied was the special case for a photograph of 50 years from the date it was made. The photograph would simply not have attracted any protection in Germany (where the term was the lifetime of the author plus 70 years following his death) because it wasn't available there and no act of infringement occurred in Germany. Thus by the time the EU directive took effect (in 1995) the UK copyright term had expired and copyright wouldn't have been revived. In the second example, say Uncle John gave a copy of the photograph to his nephew Tom who was serving in the RAF. Tom kept the photograph in his wallet and when his plane was shot down during World War 2 and Tom became a prisoner of war, the photograph was confiscated and placed in a store in Germany where it remained undiscovered until 1950 when a German researcher found it and decided to publish the photograph in a German magazine. This was an infringement of Uncle John's copyright, and if he had wanted to do something about it, he would have to have sued in the German courts, and so German Copyright law would have been engaged. Would that have effected the situation when the EU Directive came into force in 1995? The answer is probably yes, and so the copyright would have been revived two years after it had ended in the UK (in 1993), because the German term of protection was still running. However if the Berne least term rule was followed, the German court might only have been expected to apply the shorter 50 year term which would have been available in the country of origin. If they did that, then arguably the photograph would not have been in copyright in another EU member state at the relevant time as far as the EU Directive was concerned. I did say it was complicated.
In other words there is no certainty and each individual case would need to be examined to determine whether or not revival had occurred. Some authorities, such as Tim Padfield, the former copyright adviser at the National Archives, take the view that we just need to asuume that the German term applies in all cases irrespective of the country of origin. On the other hand I think that is the wrong approach, and a much more narrow assessment needs to be made, based on the facts in each case. Unfortunately there have been no court cases which have pronounced on this specific issue, and until they do we really don't have the clear answer we need.
And just to answer your other question, no, an author did not need to apply for copyright to be revived, it was automatic (assuming one knew the correct rule to apply!).
This is a really difficult question to answer with confidence, and I have talked about this a few times on the forums. The problem is that the EU legislation in unclear on the very narrow aspect of what is meant by 'in copyright somewhere in the European Economic Area'. If photograph was created in Germany then Germany would be the country of origin, and German law would set the rules for the length of time copyriight ptreotection should last, and due the various international treaties such as the Berne Convention, another country is bound to protect the work to whichever is the lower term between what German law stipulates, and what is stipulated by the country where a claim is being brought. This is known as the rule of the least term. However the EU overuled this provision because it wanted to achieve harmony in the market between its member states, hence the wording quoted above.
However, let's take a look at two hypothetical cases. The first example involves a photograph taken by Uncle John on a family holiday in Blackpool in 1943. The country of origin was Britain and the term which then applied was the special case for a photograph of 50 years from the date it was made. The photograph would simply not have attracted any protection in Germany (where the term was the lifetime of the author plus 70 years following his death) because it wasn't available there and no act of infringement occurred in Germany. Thus by the time the EU directive took effect (in 1995) the UK copyright term had expired and copyright wouldn't have been revived. In the second example, say Uncle John gave a copy of the photograph to his nephew Tom who was serving in the RAF. Tom kept the photograph in his wallet and when his plane was shot down during World War 2 and Tom became a prisoner of war, the photograph was confiscated and placed in a store in Germany where it remained undiscovered until 1950 when a German researcher found it and decided to publish the photograph in a German magazine. This was an infringement of Uncle John's copyright, and if he had wanted to do something about it, he would have to have sued in the German courts, and so German Copyright law would have been engaged. Would that have effected the situation when the EU Directive came into force in 1995? The answer is probably yes, and so the copyright would have been revived two years after it had ended in the UK (in 1993), because the German term of protection was still running. However if the Berne least term rule was followed, the German court might only have been expected to apply the shorter 50 year term which would have been available in the country of origin. If they did that, then arguably the photograph would not have been in copyright in another EU member state at the relevant time as far as the EU Directive was concerned. I did say it was complicated.
In other words there is no certainty and each individual case would need to be examined to determine whether or not revival had occurred. Some authorities, such as Tim Padfield, the former copyright adviser at the National Archives, take the view that we just need to asuume that the German term applies in all cases irrespective of the country of origin. On the other hand I think that is the wrong approach, and a much more narrow assessment needs to be made, based on the facts in each case. Unfortunately there have been no court cases which have pronounced on this specific issue, and until they do we really don't have the clear answer we need.
And just to answer your other question, no, an author did not need to apply for copyright to be revived, it was automatic (assuming one knew the correct rule to apply!).
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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Nick Cooper
- Senior Member
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Re: Old photos/postcards
Plus, we are still left with the fact that Section 12 (2) of Schedule 1 of the 1988 CDPA as currently in force remains unaltered, and thus implies that the original 1911 and 1956 Act terms remain the same for photographs that were created before the 1988 Act first became law.
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williamramirez
- New Member
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- Joined: Sat Aug 28, 2021 2:16 pm
Re: Old photos/postcards
What to do if I am a victim of inheritance fraud. And my grandfather's copyrights went to his first spouse, with whom he had not lived for the past 20 years?AndyJ wrote: Mon Feb 24, 2020 10:22 am Hi zxzoomy,
Yes, copyright can be inherited and follows the normal rules on inheritance. So for instance a person can bequeath his/her copyright to a named individual in their will, or if no such bequest is made, then the copyright forms part of the main residual estate and passes to the main beneficiary or beneficiaries. Furthermore, if a bequest is made consisting of an unpublished work which is protected by copyright (say, a painting, photograph, diary or manuscript) then in the absence of any general transfer of copyright to another individual, the person to whom the unpublished work is bequeathed also gains the copyright in that specific item (see section 93 CDPA). If there is no will then copyright follows the normal intestacy rules.
Last edited by williamramirez on Mon Aug 30, 2021 10:03 am, edited 1 time in total.
Re: Old photos/postcards
Hi William,
As I am sure you realise your problem relates to the laws of inheritance rather than copyright. If you want to challenge a will you need to get some legal advice from your own solicitor or Citizen's Advice. If your grandfather made the will to which you refer before he was divorced from his first wife (or the marriage was annulled), any provisions which related to the first wife would have been nullified by the second marriage (see sections 18 and 18A of the Wills Act 1837 as amended). However if the will containing the provision for his copyright was made after his second marriage and he intended to bequeath those rights to his first wife, that would have been valid, provided that he was of sound mind and not under any coercion at the time the second will was made. If he did not make a second will after the second marriage, then his estate would have been administered under the intestacy rules which I mentioned in the previous posting.
As I am sure you realise your problem relates to the laws of inheritance rather than copyright. If you want to challenge a will you need to get some legal advice from your own solicitor or Citizen's Advice. If your grandfather made the will to which you refer before he was divorced from his first wife (or the marriage was annulled), any provisions which related to the first wife would have been nullified by the second marriage (see sections 18 and 18A of the Wills Act 1837 as amended). However if the will containing the provision for his copyright was made after his second marriage and he intended to bequeath those rights to his first wife, that would have been valid, provided that he was of sound mind and not under any coercion at the time the second will was made. If he did not make a second will after the second marriage, then his estate would have been administered under the intestacy rules which I mentioned in the previous posting.
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