Intellectual property
Local studies librarians must be aware of the implications of copyright and other intellectual property rights relating to the material held in local studies collections.
Intellectual property rights include trademarks, patents and copyright. In practice, it is usually copyright that has the most impact on local studies materials and it is important for local studies staff to have a sound understanding of copyright in order to be able to manage the use of materials and the supply of copies.
Copyright
The principle behind copyright legislation is to protect works of the mind for a certain period of time. During the time that these works are protected, only the copyright owner has the exclusive right to copy the work, distribute it to the public, rent or lend it to the public, broadcast it or send it via electronic transmission.
The aim of copyright legislation is to balance the moral and economic rights of creators of intellectual works with the needs of users to access and copy material. The guiding principle is that the legitimate rights of copyright owners should not be unduly prejudiced by works being copied in whole or in part without their permission.
What does copyright cover?
The Government website has a simple guide to what’s covered by copyright.
For something to be protected by copyright, it has to be original and must be fixed in some way, e.g. by being written down or recorded. An idea in itself is not protected by copyright.
Copyright is an automatic right so there is no formal registration process.
How long does copyright last?
The main legislation governing copyright in England & Wales is the Copyright, Designs and Patents Act 1988 (as amended).
Copyright always expires at midnight on 31st December in any given year.
A work may have multiple copyrights that each expire at different times. For example, the rights holders of a published book may include the author(s) of the words, the artist(s) who created the illustrations, and the photographer(s) of any images. In addition, the publisher also has copyright in the typographical layout of the book.
Standard copyright terms are:
- Literary, Artistic and Dramatic works are in copyright for the lifetime of the author, plus 70 years after the author’s death
- Typographical arrangement is in copyright for 25 years from the end of the year of publication
- Sound recordings are in copyright for 50 years from creation (or when first released to the public if within 50 years of creation). Note that this relates to the recording only, not the work itself which may have its own separate copyright.
There are a number of exceptions to these standard terms, particularly for works created before 1957, or between 1957 and 1969, or works that were unpublished by 1st August 1989.
The duration of copyright in these cases depends on whether the name of the creator is known, when the work was first made available to the public, and when the creator died in relation to when the work was published.
Many works, including some that are more than 100 years old, are in copyright until 31st December 2039 because they were unpublished by 1989. Prior to the 1988 Act, unpublished works were in perpetual copyright. When published, they then received copyright protection for 50 years from publication date. The 1988 Act stated that any unpublished works were deemed published on 1st August 1989 (the date the Act came into force) meaning that copyright will expire after 31st December 2039.
Many documents that are held by local history libraries and archives were unpublished by 1989 and are therefore in copyright until 2039.
The National Archives has produced a really useful copyright flow chart that enables you to work out whether or not copyright in a particular work is likely to have expired.
The duration of copyright in a work is not affected by who owns the copyright (e.g. the right could be owned by an employer rather than an individual employee).
Who owns the copyright?
The first copyright owner would normally be the person who created the work, unless it was created by an employee during the course of their employment, in which case the employer will own the copyright.
For photographs taken between 1st July 1912 and 31st July 1989, the first copyright owner was the person who owned the negative at the time the picture was taken.
The present copyright owner may be a direct descendant of the first copyright owner but copyright may also have been assigned to a third party or have been bequeathed to someone in a will. It could also be gifted or sold by the originator and local studies collections should normally seek to be gifted the copyright if they accept a donation of non-published material. If the copyright is owned by a company and the company has been dissolved, then copyright may be bona vacantia unless separate provision has been made.
Tracing the present copyright owner may be very difficult – see the section “If a copyright owner can’t be found”.
The National Archives guide to copyright includes more details of the first owners of copyright as well as information on Crown Copyright.
When is copying permitted?
If you want to copy something and you are not the copyright owner, you first need to establish whether it’s still in copyright and, if so, whether copying the amount you want for the purpose you intend falls within an existing copyright exception.
The National Archives has a really useful copyright flow chart that should enable you to check whether or not something is in copyright.
If it is in copyright, and there is no Creative Commons licence or other permission already assigned to it, then you either need to:
- ask the copyright owner for permission to use it (which may involve paying a licence fee)
- check whether the copying you want to do falls within an existing exception to copyright (this includes limited copying for ‘fair dealing’ for non-commercial research or private study, as well as copying for teaching). Librarians and archivists in some institutions also have additional permissions to make copies for particular purposes under the ‘library regulations’ or ‘library privilege’ (SI 1989:1212).
Libraries and other cultural heritage institutions also have permission under Orphan Works legislation. The Government’s guide to their replacement to the EU’s Orphan Works directive can be found here: https://www.gov.uk/guidance/copyright-orphan-works. The scheme allows a diligent search which finds no know copyright owner of an item to be checked and registered by the Intellectual Property Office and the fees for non-commercial applications are modest, but some have questioned how much use registering a diligent search would be.
Guidance on the changes to copyright exceptions in 2014 for particular types of users (e.g. researchers, teachers, librarians and archivists) is at:
https://www.gov.uk/government/publications/changes-to-copyright-law
The Copyright Licensing Agency offers licences to copy that are tailored for businesses, charities, educational institutions, and public sector organisations.
LACA and CILIP have produced free posters for libraries to display near self-service copiers to explain what copying may be permitted.
Infringing copies
If you copy something that is in copyright without permission from the rights owner, and it’s not covered by a copyright exception or licence, then it is an infringing copy and you are at risk of potential legal action.
The Intellectual Property Office has a list of offences and potential punishments for infringement of intellectual property law, including copyright.
Photographs and other artistic works
In practice, it’s usually images that cause the most difficulties as these are often the items that people most want to copy and reuse.
Artistic works were not included in the fair dealing provisions of the original 1988 Act, but were included in regulations that came into force in October 2014.
It would be unwise to assume that images on the internet have been lawfully copied and are automatically available for reuse. There is a cautionary tale from a blogger who had thought that the widespread reuse of images online meant that there was no problem in using images from other sites on her blog provided that credit was given and images were taken down promptly if requested. This proved not to be the case.
DACS (the Design and Artists Copyright Society) has a section of their advice portal relating to exemptions for the reuse of artistic works: https://www.dacs.org.uk/advice/articles/copyright-infringement/permitted-uses.
If the copyright owner can’t be found
If it’s known that something is in copyright but the current copyright owner isn’t known or can’t be found, then the work is deemed to be an “orphan work.”
Copying an orphan work without the permission of the rights holder would be a copyright infringement (unless covered by an existing exemption). However, the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 introduced a UK government licensing scheme that enables orphan works to be used without permission from the rights holder, provided that a diligent search is carried out and a licence is issued by the government.
Further information on the scheme is at: https://www.gov.uk/government/collections/orphan-works-guidance
Assessing copyright risk
The National Library of Scotland and the National Library of Wales have developed and adopted a Copyright Assessment Framework for Libraries. This is designed to be a practical tool to assist in assessing copyright risk and making decisions relating to the copying of literary, dramatic and artistic works. It does not cover sound recordings, films, broadcasts or database rights.
It is likely to be of particular use for libraries and collecting organisations undertaking mass digitisation projects.
Further details are available by emailing the National Library of Scotland – copyright@nls.uk
Right of access charge
Libraries may levy a fee for use of material from library stock by authors, publishers, broadcasters, compilers of educational packages and other commercial interests.
This should be regarded as a ‘right of access’ fee and should not be confused with copyright payments. It would be advisable for the wording of any acknowledgement to be “images courtesy of x library” rather than any wording that suggests the library holds the copyright if it does not do so.
‘Right of access’ may not be granted in this way to items still held in unexpired copyright by external agencies or individuals, unless the library has written permission from the copyright holder. Some libraries also derive income from copyright fees for media use of material from library staff as part of local surveys, and other items for which the library holds full copyright.
Further Reading
- CILIP Copyright Hub
- UK Libraries and Archives Copyright Alliance (LACA)
- The Writers’ and Artists’ Yearbook contains useful articles on copyright
- National Archives, Copyright and related rights
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