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General => The Common Room => Topic started by: Annie65115 on Thursday 15 August 24 09:27 BST (UK)
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Our local archives has a wide selection of old photos on a dedicated website. They hold copyright, specifically it says this:
Copying and access
This digital image, and all images on (website), are protected by copyright. You may use it for private study or non-commercial research, with due acknowledgement.
You may share it on social media via a linked post or by citing (website) together with the Image Reference. You must not reproduce it by any other means without permission.
Now, what counts as "reproducing it"? I would like to use the picture in a presentation I'm giving, but would need to buy an image licence to do so and they are not cheap!
If I produce, by my own hand (ie not digitally), a black and white drawing of the scene (it's a b+w photo), does this count as a reproduction under the usual terms of such licences? In other words, if I draw the scene, based on the photo, and then use my drawing in the presentation, would I be infringing copyright? (It's a picture of buildings which were in a public place but are no longer standing. No identifiable people in the picture).
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Someone I know had this problem, with a photo in our local archive, which was not reproducable under copyright law.
He said, "Although reproducing the photograph would be an infringement of copyright producing a drawing of it is not and the reproduced drawing of this scene is what I drew a few years ago", when he put his drawing up on Facebook. As the author of many reports for local government, he must have run into same the problem many times over the years.
If you draw the scene (lucky you, to be able to!), that is your drawing. You have changed the picture, and added your own efforts to the scene. The resultant picture is then copyrightable in it's turn - to you!
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You might need to consult a lawyer specialising in IP for this
If you draw Mickey Mouse for commercial gain, you are still infringing on Disney's copyright, so copying the photo as a drawing could well also be an infringement.
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The image may be out of copyright, but the Archives holds reproduction rights, by virtue of having collected it and made it available. I would enquire whether the rules are intended to deal with people using the image for commercial purposes, and if they are intended to exclude people promoting local history in a voluntary way (non-commercial research?). The statement also has to cover images which the Archives has collected from others on the understanding they will not be reproduced without the donor's permisson (which may be available, depending on circumstances).
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They can put in text as they see fit but simply putting it on their website is putting it freely in the public domain.
If they are that concerned they would emblazon all their images with a watermark as per Getty or Alamy Images
As long as you are not getting paid for the presentation you are OK to use it.
My Wife and I have created over 100 presentations for our interest groups and we use images off the internet all the time.
We just add in very small very feint text an acknowledgement as to the source.
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As I have always understood it, the person who originally took the photograph (or if applicable, the person who commissioned them to take the photograph) holds the copyright. The archive website would have copyright on the digital image they have made by photographing / scanning the original photograph.
My father was an artist in a small way. He painted a portrait of a famous person based on an amalgamation of photographs and displayed it in a local gallery. It was purchased by someone who admired the famous person. The purchaser then commissioned my father to paint a picture of the same person, but much younger from a photo he supplied. So in the case of the first painting my father had copyright and for the second painting the purchaser had copyright.
The paintings were later donated to a museum local to where the famous person lived. I an not sure whether this was by the purchaser in his lifetime (he died in 1996) or by his widow or children after his death. As they are now in a public art collection images of the two paintings are on the Art UK website. For any painting where copyright still exists (artist still alive or less than 70 years from death) Art UK clearly differentiates between the copyright holder of the original artwork and the organisation (normally museum or gallery) who produced the digital image for the website.
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They can put in text as they see fit but simply putting it on their website is putting it freely in the public domain.
WRONG!!!!!
Images are subject to copyright whether published in a book, in a newspaper or on the internet.
The inernet does not constitute Public Domain
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As someone who has had my own copyright design and work images "poached" by others, in the past, my advice to you is to contact the copyright owners before attempting to do anything, clearly stating the use / modifications you would wish to do, and the purpose for which the image is intended. And ASK.
You will usually find the owner reasonable, indeed often very happy to have images used,often without fee, especially if there is some credit given to them, and/or it is in a good cause. If you don't, they may, as I did, require a whole print run to be destroyed, or they may request a fee. It's not a good idea to "just go ahead", because other people have blithely done so, and apparently got away with it.
TY
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The Archives should be aware of the specific copyright attached to any image they hold. They will probably also have scanned it at varous resolutions: thumbnail and low resolution for the website and high resolution for high quality reproduction and security. They will also hold many, but not all, as original photos.
I am aware of a large collection of mid-20th cent. photos which were donated to an archive by the photographer's executor BUT he had already given the negatives to a local society with a signed agreement and express instructions that the society held the copyright in the images which was under no circumstances to be handed to the archive. This apparently because once he had been miffed by the archive wishing to charge him for a copy of another photo, for reproduction.
So it can get vey complicated! That archive will just have to wait until the copyright expires.
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So much wrong and misleading information, it's a job to know where to start. So buckle up it's going to be a long one! Two parts, in fact. The first covering the legal situation and the second the OP's specific point. Before I launch forth can I stress that I'm only talking about standard copyright as it applies to literary, musical, dramatic or artistic works. I'm not talking about Crown Copyright or copyright in films, sound recordings or databases. I will start with the one posting which 100% correct. It is the one by Biggles:
WRONG!!!!!
Images are subject to copyright whether published in a book, in a newspaper or on the internet.
The Internet does not constitute Public Domain
Some of the other postings are half right, but rather than itemise each one, let's start at the beginning.
Copyright refers to a group of rights which belong exclusively to the author of a work which is subject to copyright. The three main rights are: (i) the reproduction right (to authorise copies to be made), (ii) the publication right (the right to publish the work in a particular form or to a particular segment of the market) and (iii) the making available right. This last right is the least well understood and differs from the publication right in that the copyright owner is generally authorising the work to be made available to the public at a time and manner of the public's choosing. A digital download of an ebook is one such example of the making available right, which differs from the publication right of the hardcopy book. The making available right can also include performance in public or communication to the public (books, plays, music for example); in the case of an artistic work it means exhibition in public, and for a film, it includes showing the work in public. There are also a couple of other more specific rights, such the authorising of adaptations which would include for example, the translation of a book or a play into another language.
Very few archives and libraries etc will actually own the copyright in all the items they hold. This is for the simple reason that there are only three legal routes by which copyright can transfer from the creator of the work to another person or institution. The first is if the creator is an employee and employed to create the sort of work under consideration. In this situation the employer automatically becomes the first owner of the copyright (Section 11(2) (https://www.legislation.gov.uk/ukpga/1988/48/section/11) of the Copyright Designs and Patents Act 1988 (CDPA)). So a couple of examples of this category might be a photograph taken by a staff photographer working for a newspaper, or a written piece by a newspaper reporter.
Next is the transfer by inheritance. If a person bequeaths a physical object which has NOT been published (for example a manuscript or personal letter or photograph) to which they own the copyright, to another person it can usually be assumed that they also intended to transfer the copyright along with the physical object (section 93 (https://www.legislation.gov.uk/ukpga/1988/48/section/93) CDPA). But this does not apply to anything which has been published prior to the author's death. Take the example of an author of a couple of little-known books. He or she might have decided to leave their papers to a library like the Bodlean or their old school and these papers may include the original manuscripts of their books. However unless the author's will appointed a literary executor or specifically nominated the Bodlean/school library to receive the copyright, the copyright would pass to the author's heirs and only they could authorise any of the things outlined in the second paragraph above. Similarly a literary executor would have the same powers to authorise any reproductions etc of the author's works.
The third case is an assignment of copyright. This has to be in writing and must be signed by the copyright owner (Section 90 (https://www.legislation.gov.uk/ukpga/1988/48/section/90) CDPA). So an archive which acquires a work which is believed to by protected by copyright will only be able to issue licences if the item came to them by testamentary disposition or was accompanied by a deed of assignment made by the author in their lifetime, which names the archive as the new owner of the copyright. I suggest that in most cases both of these are rare. If the archive acquired the material from a corporate body such as a dissolved company or defunct club etc it is even less likely that the legal niceties will have been complied with (obviously the inheritance route won't apply)
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So looking at the OP, the archive probably has no legal authority to issue any licences. Instead what they have stated is the standard legal situation regardless of who the copyright owner is. Anyone may copy (reproduce) any copyright item for the purposes of private study and research (section 29 (https://www.legislation.gov.uk/ukpga/1988/48/section/29)CDPA) provided that this is not done for commercial purposes and the source is cited. Secondly, even if you think that what you want to do might not meet the criteria for private study/research, you are permitted to link to (NOT copy) any image or other copyright material provided that you reasonably believe that it has been made available legally on the site to which you link (this is based on a series of judgments emanating from the Court of Justice of the European Union known as Svensson (https://uk.practicallaw.thomsonreuters.com/9-627-0604?contextData=(sc.Default)&transitionType=Default&firstPage=true), Bestwater and GS Media; the Svensson case laid down the principle and the other two cases refined the parameters of what was permitted use). However if you use this linking method for any commercial purpose, greater care is required in satisfying yourself that the source material is being made available legally. The fact the image etc appeared on site like Pinterest where there is no pre-moderation of postings would not constitute an reasonable belief that the material was legal.
And one final point, just reproducing the copyright work in another medium, say by drawing it, could still amount to infringement. The law is reasonably specific on this point (see section 17 (https://www.legislation.gov.uk/ukpga/1988/48/section/17) CDPA): (2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.
(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.
If your drawing etc includes what amounts to the essence of the original, and that content is not so commonplace and banal as to be ineligible for copyright protection in the first place, you run the risk of infringing.
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Andy - your replies are impressive, and similar to things that I've read previously, but to help us judge how much weight to give them, please could you tell/remind us a little about your qualifications or experience in this area?
There's one thing, though, that I need to pick you up on. Something has gone wrong with your quotes, and the comment that you approved of:
I will start with the one posting which 100% correct. It is the one by Biggles:
WRONG!!!!!
Images are subject to copyright whether published in a book, in a newspaper or on the internet.
The Internet does not constitute Public Domain
was actually written by Marmalady, in response to something that Biggles had written - as below, which reproduces the whole of Reply #6:
They can put in text as they see fit but simply putting it on their website is putting it freely in the public domain.
WRONG!!!!!
Images are subject to copyright whether published in a book, in a newspaper or on the internet.
The inernet does not constitute Public Domain
Sorry, Biggles, but Marmalady deserves credit where it is due.
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Hi Arthurk, thanks for the correction. You are right, I edited down the full quote and removed the wrong attribution, and so yes, kudos goes to Marmalady.
And to your earlier question, I am copyright consultant, part time these days as I have retired. I am not a practising lawyer. And as someone mentioned earlier in the thread, if you need legal advice on a copyright issue, always use a solicitor who specialises in intellectual property law, as it's a notoriously complicated area of the law, with cases only being heard in the High Court in England and Wales or Outer House of the Court of Session in Scotland. For this reason many high street solicitors will never deal with the subject. For anyone who is in need of an IP qualified solicitor, use the Law Society (https://solicitors.lawsociety.org.uk/?Pro=False) website and select Media, IT and Intellectual Property from the drop down menu under 'Your legal Issue'.
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So much wrong and misleading information, it's a job to know where to start.
Please enlightening me where I have given misleading or wrong information
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Gosh, complicated indeed! Thank you, Andy J, for your very full answer!
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Hi Arthurk....
... to your earlier question, I am copyright consultant, part time these days as I have retired....
Thank you for clarifying this.
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Please enlightening me where I have given misleading or wrong information
Hi LizzieL, it wasn't my intention to single out individual postings and pick holes in them. But since you ask, The archive website would have copyright on the digital image they have made by photographing / scanning the original photograph.
This falls into the misleading category. A simple digital image or scan of an earlier work (photograph, painting or illustration for instance) is unlikely to attract a new copyright because the newer image will lack any original creativity on the part of the photographer/scanner. For more details on this, see the section headed 'Are digitised copies of older images protected by copyright?' in this Copyright Notice (https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet/copyright-notice-digital-images-photographs-and-the-internet) published by the UK Intellectual Property Office in January 2021. This official guidance is supplemented by a recent Court of Appeal judgment in a case known as THJ Systems Ltd & Anor v Sheridan & Anor (http://www.bailii.org/ew/cases/EWCA/Civ/2023/1354.html) [2023] EWCA Civ 1354 (see paragraph 16 of the Court of Appeal's judgment in particular).
For any painting where copyright still exists (artist still alive or less than 70 years from death) Art UK clearly differentiates between the copyright holder of the original artwork and the organisation (normally museum or gallery) who produced the digital image for the website.
The same comment as above applies, although it is possible that a digital copy produced by somewhere like the National Portrait Gallery may reach the level of personal creative choices necessary to gain copyright, for instance due to care in lighting the subject, along with extensive post production editing to ensure a faithful rendition of colours present in the original.
However your earlier statement needs qualification, especially in the context of paintings. A painting itself is not 'published' by exhibiting it in public, for instance, in an art gallery. For this reason a painting that is much older than the lifetime of the artist plus 70 years can easily still be in copyright even today, due to the anomalous way in which the 1911 and 1956 Copyright Acts were written. Under those Acts the copyright term did not begin to run until the publication of the work was authorised by the copyright owner. The concept of making a work available to the public didn't exist then, so 'publication' has a narrow meaning for any painting made before 1 August 1989 when the Copyright Designs and Patents Act (CDPA) came into force. The only practical way in which a painting can be 'published' is if the copyright owner authorises that copies can be made of the work. Clearly this does not happen to all works of art, and in most cases galleries and other institutions are prevented from making copies where they cannot get authorisation from the rightful copyright owner, because that person is untraceable.
As you rightly mention, the copyright owner might have been, initially, the artist or the person who commissioned the painting, especially if this was a portrait. This means there are two separate routes by which the copyright ownership may have passed down to the present day. So a painting of this sort, which has remained unphotographed (with authorisation), might easily remain in copyright limbo for a century or more.
However the current UK law (the CDPA) has imposed a deadline of 31 December 2039 for all such works which are currently deemed unpublished. And about 12 years ago, the EU issued something called the Orphan Works Directive (https://en.wikipedia.org/wiki/Orphan_Works_Directive) which allowed art galleries, museums and the like (but not private individuals or commercial companies) to make digital copies of works which they held, without first getting permission, where the present day copyright owner was unknown or uncontactable. This orphan works licensing regime does not apply to photographs.
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All this goes to show how messed up Copyright is in this country, it fails to properly protect the people it should but allows large organisations to "claim" copyright on whatever they please knowing that ordinary users are never going to take them to court to make them prove their claim.
What really bugs me about it is what possible motive do Public Archives have for doing it, surely their remit is to hold, preserve and allow access to records. Most of the Parish Registers, for example, have been filmed decades ago but the archives go out of their way to try and restrict access to them by claiming copyright which they could not possibly have, knowing that they are very unlikely to be challenged.
One can understand multinational corporations using copyright this way, but for publicly funded archives to do it seems wrong to me, possibly legally but certainly morally.
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Sorry, but in my view it IS the case that if I've done some design work the copyright is either mine, or the client for whom it was done, depending on our agreement.
Many of mine I'd release for a specific, single use as agreed - so if you merely saw it, liked it and used it, you'd be being very naughty! But like many others, if approached properly, and in a good cause, I'd bend a bit.
I more or less agree with Andy.
TY
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Sorry, but in my view it IS the case that if I've done some design work the copyright is either mine, or the client for whom it was done, depending on our agreement.
Many of mine I'd release for a specific, single use as agreed - so if you merely saw it, liked it and used it, you'd be being very naughty! But like many others, if approached properly, and in a good cause, I'd bend a bit.
I more or less agree with Andy.
TY
TY,
The commissioner owning the copyright bit no longer applies and hasn't done since the 1988 CDPA. Unless you transfer your copyright to a client in writing it remains yours. Obviously if you grant your client an exclusive licence to the work you created, you automatically exclude yourself from the possibility of exploiting the work in parallel with your client.
Even where the old commissioner-gets-the-copyright rule applied, the actual term of the copyright remained based on the lifetime of the author of the work, and not the lifetime of the person who commissioned it.
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That's so, I agree, I remember the legislation you mention.
TY
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A fascinating if somewhat esoteric topic ! I have a personal and trivial situation:
Some years ago I came across an example on the internet of a typical Victorian four-generations photo, which I recognised immediately as it shows my grandmother's elder sister with three earlier females, taken in 1865. Not only do I have a copy, but I also have the true 'original' in the form of the glass-plate negative, which I recently made a modern enlargement from. All earlier prints will be 'copies', so is my glass plate the true original, and do I have copyright by family inheritance ?
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My understanding of photographs is that the generally copyright remains with the photographer until l70* years after death. So I don't think you do. add- I meant totypr 70 - not sure where the 1 came from - I was told this by a galley owner when I first started exhibiting.
I have copyright of all the photographs I have taken.
PS - I believe, after this, copyright lapses.
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Some years ago whilst running a training team at Hendon (Police College), I submitted a request for legal advice on a copyright issue about whether we could use some images/videos as part of our training material.
By some error the Scotland Yard solicitors sent the request to two different, and specialist, barristers who duly sent back their opinions.
One said "Yes, no problem", the other said "No, absolutely not" ......both wrote detailed legal opinions to justify their advice.
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A fascinating if somewhat esoteric topic ! I have a personal and trivial situation:
Some years ago I came across an example on the internet of a typical Victorian four-generations photo, which I recognised immediately as it shows my grandmother's elder sister with three earlier females, taken in 1865. Not only do I have a copy, but I also have the true 'original' in the form of the glass-plate negative, which I recently made a modern enlargement from. All earlier prints will be 'copies', so is my glass plate the true original, and do I have copyright by family inheritance ?
Andrew,
The short answer is ... you probably would have inherited the copyright if there was any copyright to inherit. But there won't be any copyright now.
At the time the photograph was taken the law was contained in the 1862 Fine Art Copyright Act. This was the first time that photographs were given copyright. In the 1862 Act, copyright lasted for the lifetime of the author (ie the photographer) and seven years after his or her death. This remained the case until the 1911 Copyright Act, in which for a number of reasons, including international treaties concerning copyright, photographs were then treated as a special case (section 21 (https://www.legislation.gov.uk/ukpga/Geo5/1-2/46/section/21/enacted) of the Copyright Act 1911). All photographs were protected for 50 years from the time they were created irrespective of whether the photograph was subsequently published or not. This new provision applied to existing photographs which were protected by copyright when the new Act came into force on 1 August 1912.
So irrespective of how long the photographer actually lived, copyright in your photographic plates ended at midnight on 31 December 1915. The 1956 Act did not change this term for pre-existing photographs, and it was not until the 1988 Copyright Designs and Patents Act that photographs were treated the same as all other artistic works.
However even today some countries such as Germany have two tiers of protection for photographs, with 'mere photographs' (perhaps what we might term snapshots lacking any artistic value) only being protected for 50 years from the date they were published (or the date they were created if unpublished) (see section 72 of the Urheberrechtsgesetz (https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.pdf)).
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Andy J2022
Can you explain this please:
'Generally speaking, in the UK copyright in images lasts for the life of the creator plus 70 years from the end of the calendar year of their death although the length of the copyright period will depend on when the image was created. That means that images less than 70 years old are still in copyright, and older ones may well be, depending on when the creator died.'
https://www.gov.uk/government/publications/copyright-notice-digital-images-photographs-and-the-internet/copyright-notice-digital-images-photographs-and-the-internet
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Andy J2022
Can you explain this please:
'Generally speaking, in the UK copyright in images lasts for the life of the creator plus 70 years from the end of the calendar year of their death although the length of the copyright period will depend on when the image was created. That means that images less than 70 years old are still in copyright, and older ones may well be, depending on when the creator died.'
Hi Gadget,
The Government advice is looking back from the situation which exists today. But the further back you go the more complicated it gets, as my response to Andrew Tarr indicates. The "Generally speaking" in that copyright notice is doing quite a lot of work. In other words the advice doesn't cover every case. In fact, UK law was not that complicated before 1995 when the EU waded in with its Copyright Term Directive. Prior to that, each successive UK Copyright Act from 1911 to 1988 had effectively been prospective, that is to say its provisions did not effect works already in existence.
However the Copyright Term Directive was retrospective and applied to any eligible work which was in copyright in 1 July 1995 and added 20 years to the already existing term. This is the point at which copyright in the UK went from being the lifetime of the author plus 50 years after death to plus 70 years after death. Thus for an author who died after 31 December 1944, the copyright in their work was caught by the new regime and was extended by 20 years. The same EU rules also affected photographs from the earlier period which were protected for the old 50 year fixed term. So any photograph created after 31 December 1944 also gained the additional 20 years to its term of protection.
The situation from 1995 onwards became very complicated - take a look at this secondary legislation (https://www.legislation.gov.uk/uksi/1995/3297/part/III) which implemented the changes, for a taste of how the legal drafters tried to cover all the permutations. Now you can see why the present day guidance starts with 'Generally speaking' and doesn't attempt to cover every circumstance concerning older works.
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Thank you.
I do remember when I first started exhibiting photographs and fine art professionally in the late 1980s/90s that I was told death plus 70 yrs.
Academic books were left to the publishers - I just took the royalties! (I still have some coming in from a 1999 publication!)
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As an aside to this, for works with a corporate author, when copyright was generally extended to 70 years, the Ordnance Survey stated that copyright in their publications would remain at 50 years. It is for this reason that the National Library of Scotland maps website is currently adding those published in the 1970s as they come out of copyrght.
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All this goes to show how messed up Copyright is in this country, it fails to properly protect the people it should but allows large organisations to "claim" copyright on whatever they please knowing that ordinary users are never going to take them to court to make them prove their claim.
What really bugs me about it is what possible motive do Public Archives have for doing it, surely their remit is to hold, preserve and allow access to records. Most of the Parish Registers, for example, have been filmed decades ago but the archives go out of their way to try and restrict access to them by claiming copyright which they could not possibly have, knowing that they are very unlikely to be challenged.
One can understand multinational corporations using copyright this way, but for publicly funded archives to do it seems wrong to me, possibly legally but certainly morally.
Well said.
I would argue that all the material held by any public funded Archives IS in the Public Domain.
The material held does not belong to the Archives it belongs to the Public.
People who donate material to public Archives surely do so to enable interested parties to have access to said material for their research and knowledge and by doing so they freely gave their possessions for the great good and that any public Archive does not have the right to put limitations on what use said material can and cannot be used for as long as it does not violate the wishes of the donor family.
Acknowledge the source of the repository of the material by all means
The Archives remit being the preserving and safeguarding documents and items freely donated into its care.
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This goes right back to my reply #3.
The image may be out of copyright, but the Archives holds reproduction rights, by virtue of having collected it and made it available.
Archive services do not run on thin air and their funding has reduced considerably over many years. Adding to collections by purchases, cataloguing properly including recording copyright where applicable, scanning, secure air-conditioned storage of originals and digital copies, operating a website - these all cost money.
Provision of copies is one of the few areas in which public library services generally are legally allowed to charge the public. There can be no charges for walking through the door, requesting a reader's card and asking to view any of their collections.
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I would argue that all the material held by any public funded Archives IS in the Public Domain.
The material held does not belong to the Archives it belongs to the Public.
People who donate material to public Archives surely do so to enable interested parties to have access to said material for their research and knowledge and by doing so they freely gave their possessions for the great good and that any public Archive does not have the right to put limitations on what use said material can and cannot be used for as long as it does not violate the wishes of the donor family.
Acknowledge the source of the repository of the material by all means
The Archives remit being the preserving and safeguarding documents and items freely donated into its care.
There are many collections held in archives which are accessible to the public which have restrictions placed on them, either by the depositor (eg, copyright, being asked before allowing an item to be looked at, and so on) or by various pieces of legislation, such as what is now GDPR. Many collections, including photographs, will have been deposited with no thought to copyright. Photographs in particular are a minefield, but so are things like orphan works and unpublished material. Copyright on some items that are classed as 'old' can last until 2039.
Material in public archives doesn't belong to the public. That's like saying houses or property owned by a public authority belongs to the public, which isn't true - they're for the use of the public, in the same way their archives are.