And related topics
Before we start. Rick Parsons wrote this document on 24 June 2002. It quotes extensively from relevant legislation and government web sites of explanatory material in the context of “fair dealing” for research into the subject of the title. It should be noted that the author has no legal training or authority and the views expressed are his opinions only and cannot be used in any proceedings.
Copyright is defined by national law. The general provisions in most countries follow the design and structure of the Berne Convention but the workings and enforcement of the laws are very local, particularly when pertaining to their interpretation and judicial precedent. An interpretation laid down in one country does not apply in another even if the statute being interpreted is worded identically. In the most prominent cases it is possible that the interpretation is written back into the legislation (as has happened in the UK with the 1988 act) but this may not be done in all countries or may be done differently. USA law, for instance, has recently changed dramatically when the “sweat of the brow” arguments for claiming copyright on certain commercial works was overturned in favour of “enhancing the growth of knowledge”.
“The purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all. Copyright material is usually the result of creative skill and/or significant labour and/or investment, and without protection, it would often be very easy for others to exploit material without paying the creator.”The Patent Office (repeated on UK Intellectual Property)
Note the “encourage future creativity” which is similar to the US constitutional expression to “promote the Progress of Science and useful Arts”. Copyright is not really about monetary gain; this has been important for many landmark judgements.
A literary work can contain tables or a compilation of other items. That is no problem, it is the originality that counts.
“Copyright in a literary, dramatic, musical or artistic work lasts for the life of the author and 70 years from the end of the year in which he/she died.”UK Intellectual Property
“When copyright terms were changed on 1 January 1996, the new terms were applied to many existing copyright works. All works that were still in copyright on 31 December 1995, and this includes works where copyright was about to expire, had copyright extended where the new rules on copyright terms gave a longer term.”UK Intellectual Property
Because the 1988 act stipulated 50 years, basically anything created by an author who died before 1946 has expired. For material after this date we need to wait until at least 2016. When the copyright is owned by an organisation from the start, then the clock starts ticking from the date of publication. I have looked hard but can find nothing about how you discover when the author died.
Creating the copy
“Material which is comprised in public records within the meaning of the Public Records Act 1958 … which are open to public inspection in pursuance of that Act, may be copied, and a copy may be supplied to any person, by or with the authority of any officer appointed under that Act, without infringement of copyright.”The 1988 Act (section 49) - H.M.S.O.
There is no problem with transcripts here, but photocopies are different—it is argued that copyright resides in the person/organisation that makes the copy. This is the argument used by record offices to restrict the onward publication of facsimiles of public records. This is true even if you do it yourself using their equipment. If you use your own scanner or camera then I expect that you will find that there are restrictions imposed when you obtain permission to use the equipment.
There is also a provision called “publication right.”
“Publication right gives rights equivalent to copyright to a person who publishes for the first time a literary, dramatic, musical or artistic work or a film in which copyright has expired.”UK Intellectual Property
This is talking about works that have never been published before and may apply to records that are in private hands (e.g. estate records), but does not apply to records that are required to be held by public record offices. Quite a lot of these private records held by record offices are on loan to them by the owners. Permission may be required to publish them, even in transcript. The publication right only lasts for 25 years, but any commentary on it would be an original work to which full copyright would apply.
There are also thought to be (or claimed) indefinite copyright in certain records e.g. church registers and extended terms on such things as records closed to public view for a period by law like the census. I can find no trace of this in legislation but it could be, that because of the mechanism of English law which requires obsolete statutes to be explicitly repealed, that it resides in some earlier archaic act (e.g. 1911 Copyright Act) or in dedicated legislation, statutory instrument, order in council etc.
Very little of this has been tested in court. The conclusion is that it would be advisable to get permission from a relevant authority before copying and publishing what could reasonably be expected to be public records. This has been done by the FreeCEN, FreeBMD etc. projects.
Once you have made a copy then, subject to the permissions obtained, you can do whatever you like with it. If you can persuade people to buy copies from you, then that is permissible, even if it is freely available elsewhere.
Archival materials. No permission is required from the copyright owner to publish or broadcast a literary, dramatic or musical work (together with any illustrations accompanying the text but not an artistic work alone), so long as:
Paragraph 54 - PRO Leaflet
- the work is open to public inspection in a library, museum, archive or similar institution;
- the work was created more than 100 years ago;
- the author has been dead for at least 50 years; and
- the identity of the copyright owner is unknown to the publisher or broadcaster.
There has been a lot of shouting about “you can't copyright facts.” This idea is derived from a ruling in USA law. There is no mention of the issue in UK law but it may well be true, however it all depends on the arrangement. If it is a facsimile of the original record then, subject to the agreement with the record office/owner, the image is yours and it cannot be reproduced. This is particularly relevant in the case of CDROM facsimile reproductions of books otherwise out of copyright. The maker of the CDROM owns the copyright of the facsimile.
By creating such a copy or transcript you may have added some value - e.g. by enhancing the image, interpreting bad handwriting or interpolating missing sections. However
“A work can only be original if it is the result of independent creative effort. It will not be original if it has been copied from something that already exists. If it is similar to something that already exists but there has been no copying from the existing work either directly or indirectly, then it may be original.”UK Intellectual Property
This would seem to rule out claiming of copyright on transcripts. It would certainly be ruled out in USA law because the only grounds would be "sweat of the brow" which has been deprecated. Again, of course, any commentary added would be an original work.
It could also be claimed that by creating an ordering (e.g. alphabetical by surname) that database right would apply.
“A database, that is a collection of data or other material that is arranged in such a way so that the items are individually accessible, may be protected by copyright and/or database right. For copyright protection to apply, the database must have originality in the selection or arrangement of the contents and for database right to apply, the database must be the result of substantial investment.”UK Intellectual Property
I don't think that an alphabetical arrangement is sufficiently original, nor do I think the definitions of a database can apply to a plain text or word-processor file. Some distributors of transcripts do rely on copyright and database right for this sort of work but they achieve it by including a proprietary search engine on the CDROM and, justifiably, claim copyright on the unique method of access and on the software doing the work.
An oft-quoted case in this context is “Feist vs. Rural”, but this applies only to USA law. They obtained a ruling (for telephone books) that an alphabetic ordering was not sufficiently original to justify a copyright claim. It is worth reading about but it would have to be established in UK law to have any direct authority.
Using the transcript
If * it can be argued by any of the above that copyright does apply to the work then the usage clauses would come into effect.
(*) Note the “If” well. If no copyright can be claimed then the rest of this section is irrelevant.
“You should be aware of use of material in which there is IP [Intellectual Property] which does not involve doing anything that is restricted by the IP right. For example, simply reading books and journals in a reference library to inform your research does not involve doing anything that is restricted by copyright.”UK Intellectual Property
This also applies to the necessary copying of a computer program or data into memory as a function of its normal use, and also allows for a backup of that program or data to safeguard your investment.
The act allows for the educational use of material in several significant ways, both for individual, examination, classroom and private study. However it is not reasonable to cite these as justification for copying, as the act is very clear that they are only applicable to educational establishments. I believe that private tutors can sometimes run into trouble over this, which is why private music teachers require pupils to purchase copies of all music required (at some expense as I learned many years ago).
To quote from copyright works then requires looking at the “Fair dealing” clauses. Note: if you see a quote referring to “fair use,” then it is USA law that they are quoting which can be very different.
“For example, ‘fair dealing’ with a literary, dramatic, musical or artistic work, for the purposes of research or private study does not infringe any copyright in these works or the typographical arrangement of published editions of these works. Fair dealing has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing. So, it is probably within the scope of the above fair dealing exception to make single photocopies of short extracts of a copyright work for the purposes of research or private study. The research and private study exception is a little different for databases protected by copyright. In this case, fair dealing is only possible for research for a non-commercial purpose or private study.”UK Intellectual Property
The research clauses clearly allow for the sort of study of family history that we do and there would be no restriction to helping other people (effectively in a collaborative research project) so long as it is directly relevant. Putting such research extracts onto a public mailing list (which is known to be archived) is more questionable, so I would always recommend using private communication methods when quoting copyright material. Note that research can be commercial (e.g. as a paid genealogist) or private, there is no difference except where database right is concerned.
“Copyright is infringed where either the whole or a ‘substantial part’ of a work is used without permission, unless the copying falls within the scope of one of the copyright exceptions. A substantial part is not defined in copyright law but has been interpreted by the courts to mean a qualitatively significant part of a work even where this is not a large part of the work. Therefore, it is quite likely that even a small portion of the whole work will still be a substantial part.”UK Intellectual Property
This protects the publisher from having the whole or large part of a work republished by another—e.g. on a web site. It would be hard to justify any extract where it was not directly related to a research project. e.g. in the case of baptisms, extracting those for a family in the context of a study of that family would be ok, but extracting all of a surname and just publishing it as a list would not (see * above).
“Copyright owners generally have the right to authorise or prohibit any of the following things in relation to their works: copying the work in any way. For example, photocopying, reproducing a printed page by handwriting, typing or scanning into a computer, and taping live or recorded music are all forms of copying.”UK Intellectual Property
“Exceptions to copyright do not generally give you rights to use copyright material; they just state that certain activities do not infringe copyright. So it is possible that an exception could be overridden by a contract you have agreed limiting your ability to do things that would otherwise fall within the scope of an exception.”UK Intellectual Property
These are called the economic rights of a copyright holder. They will normally do this by issuing a licence that becomes a contract between the owner and the user. This licence can be attached to the published product and then become automatic on the purchase of the publication. Contract legislation requires that the terms of the contract are visible prior to transaction or there is an opportunity to nullify the contract at no loss within a reasonable period. It is this requirement that is currently being fought regarding “End User Licence Agreements” (EULA) for software sealed within shrink-wrapped boxes. Because this is contract law, it does not even actually require that copyright subsist in the work for sale. What is being said is no more than “I am selling this item subject to the terms of the licence stated—no agreement, no sale.” I have seen the following quoted in a news article:—
A binding contract generally requires a bargain and a “meeting of the minds,” which generally assumes some ability to know what you are agreeing to, and negotiate fairly. It does not require that the parties have equal bargaining power, and many (if not most) contracts that consumers end up entering into are of the “take it or leave it” variety—buy the product and agree to the terms and conditions, or don't buy (and in some cases return) the product.
There is a provision in law to guard against unfair contract terms. This is intended to cover some silly clauses that are sometimes written in print that requires a microscope to read. However, it has been used successfully to guard against the removal of basic rights. In the USA this is currently being tested to see if Microsoft can stop people selling on copies of software second-hand, as the Windows-XP licence tries to do.
“Copyright is essentially a private right so decisions about how to enforce your rights, that is what to do when your copyright work is used without your permission, are generally for you to take. Where your work has been used without your permission and none of the exceptions to copyright apply, your copyright is said to be infringed. Although you are not obliged to do so, it will usually be sensible, and save you time and money, to try to resolve the matter with the party you think has infringed your copyright. Indeed, in some cases it may be necessary to demonstrate to a court that you have tried to solve the matter by mediation or arbitration if you wish the court to consider awarding you the best available remedy including an award covering your costs.”UK Intellectual Property
It would be thrown out of court if you have not made reasonable attempts to resolve the issue before hand. A “reasonable attempt” is rather more than a single exchange of emails. Many claimants resort directly to the “solicitor’s letter”. In the small claims court this sort of intimidation is not viewed favourably and costs are rarely granted even if the case is won.
“If you cannot resolve the issue with the other party, then going to court may be the right solution, but it would be a good idea to seek legal advice at an early stage, and certainly you should consider this very seriously before going to court.”UK Intellectual Property
“Where a copyright owner brings a case of copyright infringement before the courts, a full range of civil remedies are available, such as:
UK Intellectual Property
- injunctions served against the infringer or alleged infringer (to stop that person making further infringing use of the material);
- damages for infringement awarded to the copyright owner;
- orders to deliver up infringing goods to the copyright owner.”
“Under UK law copyright material sent over the Internet or stored on web servers will generally be protected in the same way as material in other media. Anyone wishing to put copyright material on the Internet, or distribute or download material that others have placed on the Internet, should ensure that they have the permission of the owners of rights in the material.
“You should note that the law may be different in other countries so copyright material may have been put on the internet in other countries without infringing copyright there, but it could still be illegal to use, including download that material without permission in the UK.”UK Intellectual Property
In practice, this last paragraph is completely unworkable and is one of the problems where copyright law has not caught up with reality. That is why there are efforts to harmonise the law world-wide.
“Generally, when you put your work on a web site, it is probably a good idea to mark each page of the web site with the international
© mark followed by the name of the copyright owner and year of publication. In addition, you could include information on your web site about the extent to which you are content for others to use your copyright material without permission. Although material on a web site is protected by copyright in the same way as material in other media, you should bear in mind that web sites are accessible from all over the world and, if material on your web site is used without your permission, you would generally need to take action for copyright infringement where this use occurs.”UK Intellectual Property
If your work is stolen abroad, then there is very little you can do about it except at considerable expense.
A final word
This is by no means the “final word” on this subject and I am happy to enter into any discussion on the topic, especially with any one with some experience in the area. I am told that there is a good and authorative book “Copyright and Database Right, A General Guide for Family History Societies by David Lambert FFHS:August 1998, ISBN 1 86006 092 7” but this is out of print and I have been unable to obtain a copy.
<http://www.intellectual-property.gov.uk/> (UK Intellectual Property)
<http://www.patent.gov.uk/copy/> (The Patent Office)
< http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm> (H.M.S.O - Copyright, Design and Patents Act 1988 (c.48))
< http://www.law.cornell.edu/copyright/cases/499_US_340.htm> Fiest vs. Rural
< http://www.linux-center.org/detaxe/eula_windows_xp_home_usa.html> Microsoft Windows XP—Better link, but a bit of a rant < http://slashdot.org/yro/00/06/08/0647212.shtml >
< http://www.nationalarchives.gov.uk/about/copyright.htm > PRO Leaflet.
< http://www.templetons.com/brad/copymyths.html > 10 Big Myths about Copyright explained (mostly US law).