Copyright Aid

Hi, this issue has cropped up again because when I challenged the Scottish National Library on their 70 years pma copyright period for a for a pre June 1957photograph they advised as follows:

Regulation 15(1) of the 1995 Regulations reads as follows:

“Copyright in an existing copyright work shall continue to subsist until the date on which it would have expired under the 1988 provisions if that date is later than the date on which copyright would expire under the new provisions.â€￾ [emphasis added]

Regulation 12(2) of the 1995 Regulations clarifies:

““the 1988 provisionsâ€￾ means the provisions of that Act as they stood immediately before commencement (including the provisions of Schedule 1 to that Act continuing the effect of earlier enactments)â€￾

In other words, you are correct, Schedule 1 of the 1988 Act is still in the Act. However, the 1995 Regulations allow those survival durations to apply only where they provide a longer period of protection than a work would receive under the new (1995) provisions. Because the material in question here receives a longer duration under the new provisions, the new provisions are those which apply.

I thought we had been over this argument but I can't see it in the earlier conversation here.

When I read 15(1) of the 1995 Regulations they seem simply to be saying that a 1988 provisions copyright expiry date will not be brought back to an earlier date that were to result from the 1995 regulations. It does not seem to be saying that any earlier date will be made later!
Does it mean whatever you want it to mean?

I have been sent the attached which seems useful but it also contradicts the argument that all pre June 1957 photos are out of copyright:

http://www.nationalarchives.gov.uk/docu ... wchart.pdf.

This is now being handled under the Library's official complaints procedure and I am prepared to push it to a formal review if I feel I have a sound argument.

Any further help you can give regarding 15(1) of the 1995 Regulations would be much appreciated.

Regards

PS The book is printing - see www.loosefillings.com

Pardon me trying to answer my own question but I looked up various definitions of a 'savings' clause and it seems clear its purpose is to maintain a particular right or situation not to do away with it.

If the 1995 Regulations wanted to do away with any of the savings provisions of the 1988 Act would they not have repealed them?

The savings provisions of the 1988 Act are still there in the amended Act so am I right in believing they are still applicable?

Hi Terry,

The National Archives's position and its flowchart originate from someone called Tim Padfield who was previously their Copyright guru. He is the author of a well-respected book Copyright for Archivists and Records Managers, in which a very similar flowchart can be found in Appendix 9.1. He and I have been in disagreement about the meaning of this Regulation and the EU Directive on which it is based. Regrettably the issue has never been tested in court.
As mentioned, the Regulations are based on the EU Term Directive 93/98 (which was subsequently replaced by Directive 2006/116 and again by Directive 2011/77). So it worth seeking clarity by reference to the original Directive. It touched on this aspect in two places:

Article 1

1.6 "In the case of works for which the term of protection is not calculated from the death of the author or authors and which have not lawfully been made available to the public within seventy years from their creation, the protection shall terminate."

As you are aware the 1911 Copyright Act calculated the copyright term for photographs from the date they were made. Therefore they fall into the category described in the first clause in the sentence. The change to lifetime + 50 years for photographs did not come about until the 1956 Copyright Act which did not apply retrospectively for photographs made prior to I June 1957. The 1988 Act also did not change the situation for photographs made before 1 June 1957. Thus the situation as at the time the 1995 Regulations came into force (1 January 1996) was that these pre 1957 photographs had their terms determined by the 1911 provisions and were not calculated from the date of death of the author, and so Article 1.6 applies to them. The next clause then limits the effect of Art 1.6 just to unpublished photographs. Provided the work has remained unpublished throughout the period then any photograph created before 1 July 1925 was out of copyright at the time the Directive came into effect. As at today all unpublished photographs made prior to 1 January 1945 are in the public domain, by virtue of Art 1.6.

Article 6

Protection of Photographs Photographs which are original in the sense that they are the author's own intellectual creation shall be be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs"

This article removes the anomaly which previously existed whereby photographs were treated as 'special cases', for instance in the UK's 1911 Act, as well as elsewhere.

Article 10

Application in Time
1. Where a term of protection, which is longer than the corresponding term provided for by this Directive, is already running in a Member State on the date referred to in Article 13(1) [1 July 1995], this Directive shall not have the effect of shortening that term of protection in that Member State.
2. The terms of protection provided for in this Directive shall apply to all works and subject matter which are protected in at least one Member State, on the date referred to in Article 13(1), pursuant to national provisions on copyright or related rights or which meet the criteria for protection under Directive 92/100/EEC [the Renting and Lending Rights Directive]

This is, effectively, the wording of the Directive which lead to Regulation 15 in the UK. However as can be seen the drafters of the UK Regulation have completely changed the sense intended by Article 10, which was specific to the situation on a particular Member State. In fact it was unnecessary to transpose this particular part of the Directive into UK law because there were no provisions in the 1988 Act which would have resulted in a term longer than that which arises from the EU Term Directive.

Those are the provisions of the original Term Directive. The newer Term Directives (2006/116 and 2011/77) did not change the quoted passages, although inter alia they added new paragraphs to both Articles 1 and 10, however none of the changes are relevant here.

So my argument is that, taking the wording of the first paragraph of Regulation 15, "shall continue to subsist" clearly refers to a work where copyright is actually in force, and consequently cannot be applied to a work for which the term had already ended, that is to say, where the original copyright term had expired prior to 1 July 1995 (for instance, for all photographs created before 1 July 1945). This interpretation is based on the wording of paragraph 5 (1) of Schedule 1 to the 1988 Act, which says:

(1) Copyright subsists in an existing work after commencement only if copyright subsisted in it immediately before commencement

Such works works entered the public domain at the time determined by the Copyright Act 1911. Even if I am wrong about that as far as published photographs are concerned, for unpublished photographs made prior to 1 July 1925, Article 1.6 makes it entirely clear that any protection for them was terminated at the time the Directive came into into force, namely 1 July 1995. This means that the National Archives flow chart is wrong on that point, since under the decision box for a photograph taken before 1 June 1957, where the answer is 'yes', there is no distinction between published and unpublished photographs, even though Article 1.6 says there should be.
Addendum.
I should have added that the operative part of the Regulations as far as existing works are concerned is Regulation 16, which says:

Duration of copyright: application of new provisions
16. The new provisions relating to duration of copyright apply—

• (a) to copyright works made after commencement;
  
  (b) to existing works which first qualify for copyright protection after commencement;
  
  (c) to existing copyright works, subject to Regulation 15 (general saving for any longer period applicable under 1988 provisions); and
  
  (d) to existing works in which copyright expired before 31st December 1995 but which were on 1st July 1995 protected in another EEA state under legislation relating to copyright or related rights.

From this it is clear that anything which was already out of copyright in the UK by the commencement date of the Regulations (1 January 1996) would be unaffected by the changes, unless (d) applied. The reason for that sub-paragraph is that in some EEA member States (for instance Germany and Spain) their term of protection for photographs already exceed the 50 post mortem which had applied in the UK since the 1956 Act. Tim Padfiled's argument is that therefore any work which originated in the UK would have benefited from these longer terms in one of these countries, let's say, Germany, so that on July 1995, a photograph previously produced in the UK would be subject to the lifetime + 70 years in Germany. However Article 10(1) of the Directive makes it plain that such a term would only continue to operate in the other member state. Regulation 16 fails to reflect that crucial fact and so is, in my view, contrary to the Directive. By my argument, very only those photographs which were made between 1 January and 31 December 1945 would be caught by this part of Regulation 16 since only they would still have been in copyright on 1 July 1995.

I hope you can follow that. It's an immensely complicated issue, which lacks the certainty which a court decision could give it. In the meantime, one can hardly blame librarians and others from following the guidance they have been given, especially as they will not usually have any legal training to form a different view..

Hi Andy, thank you for all that and for drawing my attention to the Council Directive 93/98/EEC which I have now read. I have also had a look at the status of Directives and have read on Wikopedia that ‘Directives are currently only vertically directly effective (i.e. against the state, a concept interpreted broadly by the ECJ, including state schools and other "emanations of the state"). Obviously another tricky area!

The Directive requires copyright terms to be 70 years pma and any works for which the term is 'abt' (after being taken!) which have not been published within 70 years abt are 'terminated'. I am not sure why this latter provision was necessary but maybe it was a case of ‘for the avoidance of doubt’?

You state that as of now all photographs taken before 1 January 1945 would be out of copyright by means of the Directive Article 1.6. In addition they would have been out of copyright on 1 January 1995 by means of Schedule 1 in the 1998 Act. So it seems there is no uncertainty regarding photographs taken before 1 January 1945; they are long out of copyright. It is also clear that the copyright term in photographs taken on or after 1 June 1957 is 70 years pma.

The period at issue is therefore limited to 1 January 1945 to 31 May 1957 and this coincides very closely with my period of study and writing.

It is not disputed that Schedule 1 in the 1998 Act means photographs taken before 1 June 1957 continue to have a copyright term of 50 years abt. However, it has been argued that the 1995 Regulations nullify that provision because of Regulation 15(1) which reads as follows:

Copyright in an existing copyright work shall continue to subsist until the date on which it would have expired under the 1988 provisions if that date is later than the date on which copyright would expire under the new provisions.

However, this is merely a ‘saving’, that is it ensures that any longer term already running would not be shortened. This is confirmed by the unambiguous wording of the Directive’s Article 10.1 which states:

Application in time
1 . Where a term of protection, which is longer than the corresponding term provided for by this Directive, is already running in a Member State on the date referred to in Article 13 ( 1 ), this Directive shall not have the effect of shortening that term of protection in that Member State.

I am not sure of the relevance of it being stated that German term for photographs is 70 years pma but, in fact, the official translation of the German legislation at http://www.gesetze-im-internet.de/engli ... html#p0012 states at Article 72:

Photographs
(1) The provisions of Part 1 applicable to photographic works shall apply mutatis mutandis to photographs and products manufactured in a similar manner to photographs.
(2) The photographer shall be entitled to exercise the right according to paragraph (1).
(3) The right according to paragraph (1) shall expire 50 years after the photograph was released or, if its communication to the public occurred prior to that date, 50 years thereafter, although the right shall already expire 50 years after production if the photograph was not released or legally communicated to the public within this period. The period shall be calculated according to Article 69.

(Article 69 is to do with the term starting on 1 January)

I do not know if that is the whole story but whereas the UK law regarding photographs taken on or after 1 June 1957 seems to be strictly in line with the Directive, the German law seems not to be so for any photographs!

Regards

Hi Terry,
Thanks for the extra comments. This is a murky area of the law so I applaud your efforts to try and wade through it for some real purpose, rather for the sake of academic argument.

Just a quick clarification on the German law. Article 72 of the Urheberrecht Gesetz is intended to cover 'other photographs' (ie ones which fail to meet the originality test) as referred to in the third sentence of Article 6 of the EU Term Directive

Article 6

Protection of photographs

Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.

All 'original' photographs are covered under the main provisions. (Article 2 et seq of the Urheberrecht Gesetz). German (and French) courts apply much higher tests for originality to photographs before they can gain full copyright protection (for instance see this decision by a French court over a portrait of Jimi Hendrix).
There is no corresponding provision for 'other' photographs under UK law, so it is presumed they have no protection.

Thanks, Andy, for picking me up on the German law. I presume the 50 years term referred to is similar to the 50 years applied to related rights.

I am now going to tackle the National Library of Scotland but I suppose that in the end they are entitled to apply the terms of the Directive rather than the UK law, and in any case to apply whatever conditions they like to their supply of their copies of their property?

On the other hand I am comfortable that as far as UK law is concerned I would not be breaching the rights of any photographer by publishing photographs taken prior to June 1957.

Regards

Hi Terry,
It might be worth taking a different tack if you meet further obstruction. As the Library appear to be the guardians of the works you need access to, you might push them on how they acquired the material in the first place. Very often when papers and materials are lodged with a major archive copyright passes to the institution along with the physical title to the material (the legal basis for this can be found in s93). Alternatively there may be some sort of deed of transfer which applies, and which could assist in finding the current owner of the copyright. At the very least I would expect there to be some correspondence on file about how the Library came by this material. The law on moveable property and inheritance in Scotland differs from that in England and Wales so by prepared for some local issues on that. Either way it is possible that the Library holds information about the current owner of the copyright, which if provided to you would allow you to get the relevant permissions. If they don't have any information, then you are 90% of the way towards getting an orphan works licence to use the photographs as you require.
Unfortunately, if this was something other than photographs, the Library could do this for you using a different orphan works clearance system which is only available to certain libraries and archives, and which allows them to self-certify that they have conducted a diligent search and have not been able to find the copyright owner. That system has the advantage that does not require any fees to be paid by the museum. However as I say, it doesn't apply to artistic works including photographs.

Thanks a lot. I'll let you know how it goes.

Here is the link to the film in question which might make a change from looking at legal stuff. It is nicely 'period'.

It is the hillclimb on the old military road in Glen Croe which rises to a pass called Rest and Be Thankful.

http://ssa.nls.uk/film/2120?search_term ... ields=Film.

Regards

Terry