Copyright Aid

Apologies for the long post but I'm hoping to clear the mists on this one after months of confusing advice !

I have, for nearly 10 years, built and grown an image archive website that holds over 2000 images of my local area. The images are mostly from old postcards and most of them from the 1900-1930 era but some are more recent. Equally, some are from old newspapers, magazines and just basically anywhere. The site does not include any images from the "digital" era.

The site is completely non-commercial and is purely there to encourage an interest in and to educate people about the area's history ..... not dissimilar to the plethora of "My City in Old Picture Postcards" books that you can find in most bookshops.

I have a supporting Facebook Group that discusses images, identifies images and even contributes further images. That group has nearly 11,000 members so the whole operation is quite a popular one.

I try to keep tabs on UK copyright law and am aware of some changes taking place over recent years (to align UK law with EU law maybe ?) but I've struggled to get a clear understanding on how these changes might have impacted on what I do.

Some commentary seems to suggest that UK copyright law is now retrospectively applied (which it wasn't when I started out) such that all images - even those going back 100 years - are "in copyright" and can't be used even if it is impossible to trace a copyright owner for them.

Others have suggested that is nonsense because it would suddenly make the very many websites AND books presenting images from old sources illegal.

Can anybody offer any simple, factual guidance of relevance here ?

Any help appreciated.

Hi Paul,

I don't think a "simple, factual guidance of relevance" is actually possible, but I will do my best to answer this.

In the UK and EU virtually all photographs are treated in one of two ways, which I will explain below. But not every photograph is entitled to copyright. Those that don't qualify are usually when there is little or no human involvement in how the photograph is made. So the output from speed cameras and Photo-Me type booths generally fall into this non-copyright category. However, it is unlikely that the sort of photographs you host on your site will be of that type, because they have had human authors who will have made various key decisions about exposure settings, angle of view, cropping, timing etc. This is even more true in the case of analogue rather than digital photography.

So to go back to the two main copyright categories.

The first concerns all images which were in copyright as at 31 Dec 1995, and anything created since then. These are subject to the current copyright term consisting of the author's lifetime plus 70 years from the end of the year in which he/she died. Prior to that date (31/12/95) the UK rule was that the copyright term was the author's lifetime plus 50 years. From this it can be seen that provided the author died before 1 Jan 1945 the photographs he/she produced would be in the public domain by the time the change to +70 years occurred, so would not be caught by it. However there is an important 'but' here, and this is where the EU law affects things. The EU Directive responsible for bringing in the +70 years part also included the following stipulation

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.

(Article 10 of Council Directive 93/98/EEC of 29 October 1993)*

This was inserted because at the time (1993) that the Directive was drafted the term of copyright protection in Spain was 80 after the author's death, and in Germany and several other places, it was already at +70 years. The wording of the Directive was intended to mean that where the existing period of protection in a member state was longer than +70 years, the coming into force of the Directive would not affect copyright for those works already enjoying the greater length of protection in that country. This was reflected in the UK Regulations by the following sub-clause

16. The new provisions relating to duration of copyright apply—
[...]

• (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.

It is this which has caused the confusion, which I think you have experienced, concerning the impact of EU legislation in this area. Some people have interpreted this to mean that because, theoretically a photograph which originated in the UK would, if it had also been published in Span, have enjoyed the longer term there, this means that any work should be accorded the maximum life time +80 years when looking back to see what works would have been in copyright in the UK on 1 July 1995. However I believe this is wrong because the EU Directive clearly says it "shall not have the effect of shortening that term of protection in that Member State" where 'that Member State' means the one with the longer existing term, not other states which do not.

The second category concerns all photographs made between 1911 and 1 June 1957. For these photographs (and this only applied to photographs and not other forms of copyright works) the term of protection was 50 years from the date the image was made (ie when the photograph was taken), and was not based on the lifetime of the photographer. Obviously a photograph made after 31 December 1944 would still have been in copyright under this rule at the trigger date of 1 July 1995 mentioned above and so it would have become subject to the new rules of lifetime + 70 years. However any photograph made before 1 January 1945 would have been out of copyright by 1 Jan 1995 and was not brought back into copyright by the subsequent legislation. What's more, the period of 50 years from the making of a photograph applied whether a photograph had been published or not.

And finally, if the author of a photograph is unknown or anonymous, different provisions apply. Section 12(3) of the Copyright Designs and Patents Act says:

(3) If the work is of unknown authorship, copyright expires—

• (a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or
  
  (b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,

And for a photograph where the author's name is known (and so Section 12(3) would not apply), but it has proved impossible to trace the author or find out if/when he/she died, you can use the Orphan Works scheme operated by the Intellectual Property Office to obtain a licence to use the work without becoming liable for infringement should the real author subsequently come forward to claim his/her work.


* This Directive has now been replaced by EU Directive 2006/116/EC but the wording of Article 10 is the same in the new Directive.

That's a superb reply Andy and I'm very grateful for your time in putting it together.

Can I ask a couple of questions ...........

AndyJ wrote:From this it can be seen that provided the author died before 1 Jan 1945 the photographs he/she produced would be in the public domain by the time the change to +70 years occurred, so would not be caught by it.

How do I prove that a photographer behind a 1920 (for example) postcard died before 1945 and what if I can't prove that ..... possibly because I don't know who he/she was (see below) ?

AndyJ wrote:And for a photograph where the author's name is known (and so Section 12(3) would not apply), but it has proved impossible to trace the author or find out if/when he/she died, you can use the Orphan Works scheme operated by the Intellectual Property Office to obtain a licence to use the work without becoming liable for infringement should the real author subsequently come forward to claim his/her work.

Can you clarify exactly how the Orphan Works ruling(s) impact on what I do as more than 70% of the images I have carry no distinguishing marks to indicate who the photographer was. Most of the remainder do have either a photographer or printer's mark but almost always of people or companies that are no longer traceable.

Can I use those images with some sort of published caveat that should anybody with proven copyright wish me to remove them then I will ?

Does "reasonableness" come into any of this in any way ?

Although I have next to zero knowledge of copyright law (apart from the fact that it is in complete chaos when it comes to very old images), I have a distinct feeling (and I may well be wrong), that the Orphan Works licence is just insurance. You pay your fee and go ahead. In the event of someone turning up claiming copyright, Orphan Works sorts it out for you. Banking on the fact that in 99% of the cases, no-one will turn up!
I have often used images to which I do not own copyright, and never hear a thing. I suspect this situation is very widespread. For instance, I am out with a group of people with my camera. I ask one of them to take a group photograph using my camera. Later, I get the image developed and have it published. I do not own the copyright, but cannot remember who took it, and it is equally likely that whoever did take it does not remember either. I have often been asked to take pictures of people using their camera, in some cases, total strangers. I have no recollection of who they were the day after, and neither do I care!
A while back, I had a publicity photograph taken of myself aboard ship, and wanted to publish it in a book. The photographer's name and telephone number was on the back. I phoned him up and asked his permission to use it. He said that he had no recollection of taking it, even though I gave him the month and the year, the name of the ship and company, and the port we were in at the time. He agreed he had taken it as his stamp was on the back, and he did live in that port. Result, he said just go ahead and use it. Neither was he even bothered about an acknowledgement!
I think it extremly unlikely that anyone will even remember taking your old images, and even if someone claimed they had the copyright, I doubt if they could prove it!

Hi again Paul,

When you know the name of the photographer but can't find out when they died, your only real option is the Orphan Works system. However where the author is unidentified and if it is reasonable to assume that they must have died by a certain date - for example if you know they were working in the middle of the nineteenth century when average life expectancy was about 70 years, it is probable that they will have died before 1940 - then in that case you should invoke section 57 CDPA instead of going down the Orphan Works route:

57 Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author.
(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

• (a) it is not possible by reasonable inquiry to ascertain the identity of the author, and
  (b) it is reasonable to assume—
  • (i) that copyright has expired, or
    (ii) that the author died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

Note that this exception is different to the section 12(3) one I referred to in my last posting because unlike s12, with s 57 it doesn't matter when the work concerned was published.

The IPO website explains how the Orphan Works system works and the staff there will assist you with your application. They publish downloadable guides which are specifically aimed at how to carry out a diligent search for the different types of copyright work. Here's a link to the one covering photographs. The IPO don't adjudicate or 'rule' on anything. They merely confirm that you have carried out a diligent search to find the copyright holder, and once that has been done you can gain a licence to legally use the image(s) for 7 years without being liable in the event that the actual owner shows up. You can lump together up to 30 images in one application, in order to reduce the administrative fees. The system was set up mainly to assist archives and museums who face very similar problems to your website, and in general the feedback after the first full year of operation was very positive.

If you want to take a chance along the lines suggested by Lumberjack, then you should certainly put a disclaimer on you site to the effect that you believe the images are no longer covered by copyright, and that you will take down any where that proves not to be the case. That should cover most if not all of the problems you face. However should you come up against a belligerent copyright owner who insists on suing you, no amount to disclaimers will actually be admissible as a defence in court. You might think that being sued over something so trivial is unreasonable, and I'm sure many readers would agree with you, but some litigants tend to favour the 'matter of principle' approach over the reasonable one, so be warned.

One final point I should have mentioned in the previous posting. If any of the images appear to be subject to Crown Copyright, then enitirely different rules apply. (see here for more details).

In the case of Crown Copyright, I have found there is no problem whatsoever. I wanted to use a certain Crown Copyright image. I asked them, and they supplied it free of charge. They also gave me the wording to be used in the acknowledgement. I phoned them up to say thank you, and commented that it was a pleasant surprise how easy it was. They replied that with the widespread trampling over copyright laws and rules on the Internet, it wasn't worth the effort of pursuing it, and they were happy to just grant me permission. So, it seems that the best way is to just ask!

AndyJ wrote:The second category concerns all photographs made between 1911 and 1 June 1957. For these photographs (and this only applied to photographs and not other forms of copyright works) the term of protection was 50 years from the date the image was made (ie when the photograph was taken), and was not based on the lifetime of the photographer. Obviously a photograph made after 31 December 1944 would still have been in copyright under this rule at the trigger date of 1 July 1995 mentioned above and so it would have become subject to the new rules of lifetime + 70 years. However any photograph made before 1 January 1945 would have been out of copyright by 1 Jan 1995 and was not brought back into copyright by the subsequent legislation. What's more, the period of 50 years from the making of a photograph applied whether a photograph had been published or not.

I was under the impression that the 1995 Regulation did not "go live" until 1 January 1996, meaning that the copyright on photographs taken up to and including 31 December 1945 would have already lapsed as per the 1911 Act.

Paul33 wrote:How do I prove that a photographer behind a 1920 (for example) postcard died before 1945 and what if I can't prove that ..... possibly because I don't know who he/she was (see below) ?

You wouldn't need to. The copyright on a photograph taken in 1920 would have lapsed at the end of 1970, as per the 1911 Act. It would therefore not have been extended by the 1995 Regulations, regardless of when the photographer died.

In practical terms, if you are taking an photograph from a postcard that was used/franked before the end of 1944 (possibly 1945 - see my post above), or a book published before the same, it is now public domain.

Lumberjack wrote:Although I have next to zero knowledge of copyright law (apart from the fact that it is in complete chaos when it comes to very old images)

I wouldn't say it is "chaos" - it could certainly be reduced to a fairly simple flow diagram. I think the real problem is that on the one hand a lot of people seem to simply assume that "old = public domain," while on the other hand there are publishers who love to loudly claim copyright on photographs that a) are no longer protected, and b) they probably weren't the copyright owner, anyway. Those who republish old postcards do seem to be the most active in this respect, even though their subject matter is perhaps the easiest to determine the copyright status of.

Nick Cooper wrote:

Paul33 wrote:How do I prove that a photographer behind a 1920 (for example) postcard died before 1945 and what if I can't prove that ..... possibly because I don't know who he/she was (see below) ?

You wouldn't need to. The copyright on a photograph taken in 1920 would have lapsed at the end of 1970, as per the 1911 Act. It would therefore not have been extended by the 1995 Regulations, regardless of when the photographer died.

In practical terms, if you are taking an photograph from a postcard that was used/franked before the end of 1944 (possibly 1945 - see my post above), or a book published before the same, it is now public domain.

Didn't the 1911 Act deem an image to be in copyright until "life + 50 years" ? You are suggesting it was "publishing date + 50 years" which would make my life easier of course !!!

Are you sure ?

Paul33 wrote:

Nick Cooper wrote:

Paul33 wrote:How do I prove that a photographer behind a 1920 (for example) postcard died before 1945 and what if I can't prove that ..... possibly because I don't know who he/she was (see below) ?

You wouldn't need to. The copyright on a photograph taken in 1920 would have lapsed at the end of 1970, as per the 1911 Act. It would therefore not have been extended by the 1995 Regulations, regardless of when the photographer died.

In practical terms, if you are taking an photograph from a postcard that was used/franked before the end of 1944 (possibly 1945 - see my post above), or a book published before the same, it is now public domain.

Didn't the 1911 Act deem an image to be in copyright until "life + 50 years" ? You are suggesting it was "publishing date + 50 years" which would make my life easier of course !!!

Are you sure ?

Yes. The wording of the 1911 Act is:

"21 Provisions as to photographs.

The term for which copyright shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived...."

Although the 1956 Act introduced "life + 50 years" for photographs, it didn't apply to existing ones. The 1956 and 1988 Acts preserved "creation + 50 years" for photographs taken before 1 June 1957 (when the 1956 Act became law). The 1995 Regulations changed it to "life +70 years" or "publication + 70 years," but only for those photographs that were still in copyright when the Regulations became law.

The reference to publication in my previous post was in the context of being able to use publication date as proof of the latest date by which a photograph included in the bookt could have been taken, similar to confirming the same via the dated Royal Mail franking of a postcard.

Thanks Nick.