Copyright Aid

Thank you Andy,

Andy: Yes I know I said I couldn't categorically say that unpublished photographs created prior to 1 June 1957 were out of copyright, but that was due to my natural caution on such matters because the courts have not definitively ruled on this possible anomaly. That is not to say I think it is a major issue.

I follow that and from a practical point of view it is not a major issue but it could be if a museum won’t copy a photograph for publication. Please note my interest is in my publishing photos 1902-1960 approx. The Science Museum picture issue was just the straw the broke the camel’s back in my attempts to understand what the law says in the face of much that was published and confusing (present forum excluded

tsrwright wrote:
It does look as if Section 3, subsection 2 of the Seventh schedule to 1956 Act applies to photos taken before its commencement so that for unpublished photos taken before 1 June 1957 copyright was extended until after they were published.

Andy: I don't follow your argument here. Section 3 of Schedule 7 deals with ownership of the copyright, not the duration (which is covered in section 2 of the schedule).

I think the issues relevant to me and others like me are mainly duration and I had skimmed over Section 3 as it seemed to deal with employment and commissioning issues.

However, reading the 1956 Act, Schedule 7, Section 3, subsection 2 again it says in full with my emphasis:

Duration of copyright
2. In relation to any photograph taken before the commencement
of section three, subsection (4) of that section shall not apply, but,
subject to subsection (3) of that section, copyright subsisting in the
photograph by virtue of that section shall continue to subsist until
the end of the period of fifty years from the end of the calendar
year in which the photograph was taken, and shall then expire.

So I cannot now see where I got my argument from or that there is much ambiguity, at least for practical purposes. But I note your caution regarding this not being tested.

And for the record the 1988 Act, Schedule 1, Subsection 2 says:

2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act— …
(c) published photographs and photographs taken before
1st June 1957;

If, as we seem to conclude, that all photographs taken before 1 June 1957 had a copyright period expiring fifty years after the end of the year that the photograph was taken, that is very significant. Other guides online are saying that is 70 years after the death of the author right back to 1912 and it was that sort of advice that started me on this chase.

Regarding Mr Prestwich, thank you for that. (still can't post a picture which is a pity.

Hi Terry,
I'm glad things seem a bit clearer now. I wish you luck in convincing the Science Museum to release a copy of the photograph to you.

Is this image, which I found via GoogleImage, from a similar era to the one you are seeking?
(source: www.rhodesfamily.org.uk. Used here under a Creative Commons Attribution-Non-Commercial-Share Alike 2.0 licence)
As a matter of coincidence, John Alfred Prestwich was born and died in the same years as one of my grandfathers.
Also, from a bit of superficial research, I think it is possible that the current day Triumph Motorcycle Co Ltd may be the most likely owners of any copyright once owned by JA Prestwich Industries Ltd. It would certainly be a good starting point if any of the later images you want to use are also connected to the company. Obviously material from the 1920s onwards will almost certainly still be in copyright.


Afternote. The image above is in fact 'Jack' Prestwich born 1862, who is apparently unrelated to John Alfred Prestwich. (more details on Jack Prestwich here).

Interesting Andy, but not the same John Alfred Prestwich and I still can't post anything here to show you mine

You could be right about Triumph because JAPs were taken over by Villiers c1957 who became Norton Villiers Triumph under Dennis Poore and I suppose the current Triumph company could own all the intellectual property.

They now seem to make very good motorcycles.

I am going to publish some JAP drawings up to 1956 I own copies of so I will not even think about who owns the copyright!

Many thanks for your very valuable help.

AndyJ wrote:The 1911 Act differentiates between other forms of copyright work, based on whether they have been published or not, but Section 21 which deals with photographs makes no such distinction. As far as I aware the courts have never been asked to decide on this question which thus remains slightly debatable.

Is it cynical to suspect that the reason it has never been tested is because even lawyers working for putative rights holders think that the decision would not go in their favour? Far better to maintain that all pre-1957 unpublished photograph are still protected, so that would-be users cough up licensing fees rather than take a risk.

Nick,
What a cynic you are! Probably not far from the truth though.

Science Museum agrees to copy Mr Prestwich!

Here he is

Sorry it's so big and this is just the contact print off the plate

Hi Terry,
Excellent news. And thanks for the picture. Brings a whole new meaning to getting on yer bike.

Following on from all the above I have found that a number of sources provide different advice.

For example, in ‘A User’s Guide to Copyright ‘2006, (Flint, Fitzpatrick and Thorne, Sixth ed) it says at page 82, para 6.01, and it is similarly stated at page 87, para 6.09: The copyright in photographs taken between 1 July 1912 and 1 June 1957 subsisted until the expiration of 50 years from the end of the calendar year in which the photograph was taken.

But at Appendix 5 p993 there is conflicting information in that for photographs with a known author it is stated that duration of copyright is 50 years from the end of the calendar year taken or 70 pma if longer.

So it seems the authors of this 'authorative' work are confused.

I have gone back over the above and can't see anything to change the key conclusion reached : all photographs taken before 1 June 1957 are out of copyright. The only way this could not be valid would be if somehow Schedule 1 to the 1988 Act doesn't mean what it says.

Are you with me on this?

Interestingly I found out current German copyright law on photographs only has a 50 year copyright period with no pma. See http://www.gesetze-im-internet.de/engli ... html#p0012. Yet UK has 70 years pma to bring us in line with them!

Thanks for those references, Terry.
As there has not, to my knowledge, ever been a case which tested the law on this, it seems it must remain an area in which clarity is lacking.

Andy, I detect some caution in your response.

Do you feel like explaining the reason for caution further to earlier posts.

It seems clear enough to me but why are so many sources applying this 70 year pma term? Have they maybe not read the Schedule do you think?

Andy, I detect some caution in your response.

Do you feel like explaining the reason for caution further to earlier posts.

It seems clear enough to me but I wonder why are so many sources applying this 70 year pma term? Have they maybe not read the Schedule do you think?

Hi Terry,
Well, as I said much earlier in this thread

AndyJ wrote: Yes I know I said I couldn't categorically say that unpublished photographs created prior to 1 June 1957 were out of copyright, but that was due to my natural caution on such matters because the courts have not definitively ruled on this possible anomaly.

It's the fact that a number of sources (another being Tim Padfield's excellent book Copyright for Archivists and Records Managers) are less than clear cut on this subject. This means it is not settled law, and that in turn means that one needs to place caveats on statements about photographs from this era. As I hope I have shown in my earlier replies, I am fairly sure that the black letter law does say what we think it says, and a good advocate ought to be able to convince a court that that is the correct reading of the law, but until such time as that happens ...
Pragmatically speaking, in most cases such photographs will effectively be orphans to the extent that no-one alive today will know or think they own the copyright (should it exist), and thus challenges to users who assume that a photograph is in the public domain will be rare and are likely to be confined to the sort of experience you had with the Science Museum.

Thanks, that's as clear as it's going to be.

Interesting how clearly it is stated in the German law.

Now to look at the Australian situation.....