Copyright question

[Andy J2022]

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) 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 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 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)

[Andy J2022]

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 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, 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 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.
   

[arthurk]

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.

[Andy J2022]

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 website and select Media, IT and Intellectual Property from the drop down menu under 'Your legal Issue'.

[LizzieL]

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

[Annie65115]

Gosh, complicated indeed! Thank you, Andy J, for your very full answer!

[arthurk]

Hi Arthurk....

... to your earlier question, I am copyright consultant, part time these days as I have retired....

Thank you for clarifying this.

[Andy J2022]

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 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 [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 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.

[Steve3180]

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.