Copyright and Family History

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AndyJ
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Joined: 19 Apr 2019 13:53

Copyright and Family History

Post by AndyJ » 27 Jun 2019 21:12

In the course of our family history investigations, most us will encounter issues to do with copyright at some time or another. However most laymen are unaware of another so-called intellectual property right known as database right which can be equally relevant. This short(ish) note is intended to clarify some aspects of both rights from the perspective of family history research.

The standard duration of copyright is the lifetime of the author of the work plus 70 years from the end of the year in which he or she died. This will apply to virtually everything (except where Crown Copyright applies) created after 1 Jan 1945. Before this date, the post mortem period was only 50 years for published works, but a very different regime applied to works which had not been published, such as diaries or personal letters, for which copyright could remain in place until 2039. The exception to this published/unpublished rule is photographs which were taken before 1 Jan 1945. Simply put, any such photograph whether published or not, is now free of copyright.

Anything at all created before 1710 is not subject to copyright.

Who owns the copyright after the author has died? Unless a specific provision was put in the will of the deceased author, ownership of the copyright will have passed to the main legatee, or if the author died without a will, copyright passed jointly to all legatees under the intestacy rules. Where a will contains a specific bequest concerning a work which is subject to copyright (for instance, a manuscript or the deceased's personal papers) copyright is deemed to pass with the object bequeathed. Thus if you have inherited your grandfather's unpublished memoir of his time in Africa, you probably also own the copyright in that work.

Most of the time, finding an heir who is the present day owner of copyright can be a problem, but we family historians are used to tracking down long lost family members, so we have an advantage.

However, in many cases, it probably isn't necessary to seek formal permission to use a copyright work, provided that use is not for commercial gain. This is because of the fair dealing rule for the purpose of private study and research found in section 29 of the Copyright Designs and Patents Act 1988. The only requirement is that the source be acknowledged, but as we tend to do that anyway, that is not an onerous stipulation.

I mentioned Crown Copyright earlier. Most of you will have encountered this when dealing with Censuses, the 1939 Register and BMD certificates, as well as electoral registers. Here the rules are slightly different. If a Crown Copyright work has been published then it remains in copyright for 50 years from the date of publication, or 125 years from the date it was made, which ever is the shorter period. An unpublished Crown Copyright work is protected for 125 years from its making. However the Section 29 exemption also applies to Crown Copyright, and even if this is not sufficient, getting permission is relatively straightforward, and provided it is not required commercial purposes, free.

Other 'official' documents such as parish registers exist in a sort of limbo land. They are not Crown Copyright, and they are not the copyright of the Church (although the church may well be the owner of the physical register). Technically each priest or parish clerk will own the copyright in their particular entries, but clearly it is not practical to get permission from their heirs, and so you can rely on section 29 in almost all cases. However if you wanted to publish a book which included substantial amounts of parish register entries, since this would be a commercial publication, section 29 would no longer apply, and it would be best to get permission from the person or archive which holds the physical register, on the basis that they are probably the current copyright owner.

It is worth just mentioning that 'facts' can never be subject to copyright. So dates, names, addresses etc are not protected by copyright. From this it may appear that something like a census which is entirely made up of facts, is therefore unprotectable. Sadly this is where database right intervenes. A database is "a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means". The actual contents of a database may or may not be subject to copyright, although in most of the cases where we will encounter databases, copyright probably won't apply. Database right exists where the owner takes the initiative and invests money and/or labour in obtaining, verifying or presenting the contents of the database. Where that person is an employee, his employer is said to be the owner of the database right. The right lasts for 15 years from the completion of the database or fifteen years from the date it was first made available to the public - although note that with many databases (eg Ancestry's), each addition of new data resets the clock so that, in theory, the database right can become perpetual. However for a completed database such as a census or electoral register, the right will come to an end 15 years from the date it was first released to the public. Fortunately, the same section 29 provisions apply to database right, although generally speaking database right is only infringed where a substantial part of the database is taken or re-used. The USA does not recognise database right and so you probably won't find it mentioned in the terms and conditions of the various family history companies like Ancestry.

Just three final points to note. Facsimiles or photographs of an original work (such as an image of a page from a census, or a microfilm of a newspaper) do not attract their own copyright because they are generally made by automated processes with no human creative input. However that does not stop companies like Ancestry or FindMyPast from claiming copyright in such images, much as many museums and art galleries do over digital photographs of items they hold, the rights to which generate money from sales of postcards etc. Secondly there is no copyright in transcriptions, again because there is insufficient creative input by the transcriber who just writes down what she sees. This is more contentious, as formerly the test under UK law was whether the author had expended sufficient skill and effort (which a transcriber certainly will do) in making a transcription. However this test has now been abandoned in favour of the approach taken elsewhere in Europe, namely that a work must exhibit something of the spirit and personality of its author before it is eligible for copyright protection. And finally we need to remember not to confuse the rights of a copyright owner, with the entirely separate right to dictate certain rules over access to documents etc. In my experience, when an archivist asks you to fill in a copyright waiver form, it's best not to argue the finer points of the law and just sign! Similarly it will be a condition of membership of a site like Ancestry that the material they provide is only to be used in manner described in their terms. That means that the applicable law is that of contract, not copyright. More details on this topic here
Last edited by AndyJ on 19 Jul 2019 08:31, edited 1 time in total.

alex69
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Joined: 29 Oct 2013 12:36

Re: Copyright and Family History

Post by alex69 » 28 Jun 2019 08:09

AndyJ

Many thanks for this very useful summary.

Alex

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MaryA
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Re: Copyright and Family History

Post by MaryA » 01 Jul 2019 19:11

Thanks Andy, it could be a bit of a minefield, but hopefully we will stay more or less within the rules :)
MaryA
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Names - Lunt, Hall, Kent, Ayre, Forshaw, Parle, Lawrenson, Longford, Ennis, Bayley, Russell, Longworth, Baile
Any census info in this post is Crown Copyright, from National Archives

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