Copyright and images - an introductory guide, part 2
Rachael Lazenby
Identifying copyright holders, orphan works and due diligence
Frequently
publishers will include images which have appeared in other
publications. The modern convention is to include a caption with the
image which makes it very clear who the copyright holder is and who
should be approached for permission to reproduce an image. However, the
older the publication, the more likely it is that such information will
not be found in a caption. The RCHME volumes, the earliest of which date
from 1913, contained copyright holder information in a variety of
places. This included the illustration lists, footnotes, and the
preliminary materials of the texts as well as in illustration captions.
When considering using images from older works it is advisable to check
in all these places for information on the copyright holder if the
original publisher no longer exists or does not retain rights
information on older publications. Internet searches, local history
societies and local museums may also be able to help in establishing the
copyright status of historical images.
Inevitably
there were some images included in the original RCHME volumes whose
owners could not be traced. Such images are known as orphan works.
Different organisations take different stances on how to approach such
images and every organisation will have advice on what constitutes due
diligence in attempting to establish a copyright holder.(1) A record
should be kept of all efforts made in trying to trace the current rights
holder.
Crown Copyright
Crown
Copyright applies to images produced by certain UK government bodies
and lasts for 50 years. The National Archives has a very informative section on this topic, including a list of bodies whose images now fall
under Crown Copyright. Many
images which are protected by Crown Copyright can be used if a link
appears with the image directing the reader to a ‘click-to-use’ licence.
Fair use and Enforcement
So
far I’ve tried to avoid distinguishing between reproducing images for a
limited circulation (such as a dissertation) and a wide circulation
(such as a paper published in a journal). Theoretically copyright law
covers any reproduction of a work regardless of the circulation or the
commercial value of the work. Of course in practical terms the greater
the commercial value of an image the higher the likelihood that the
copyright holder may take legal action to prevent or punish any
unauthorised use of their image.
Fair
use is a concept which enables students and researchers to provide
examples and quotations of other people’s works in essays and papers
without first obtaining permission from the originator. Generally
speaking quotations tend to pose fewer problems than images and
providing they appear in the body of a text and for educational,
critical or journalistic purposes, they can be used without express
permission. Most educational institutions and publishers have a legal
team who will be able to advise on any concerns you may have about
reproducing images. In addition universities will often provide guidance
on matters of copyright in student handbooks.
It
is important to note that while fair use can be used as a legal
defence, copyright is a complex issue, and copyright holders have the
right to protect their work from any unauthorised use.(2) Following the
principles of fair use will not necessarily prevent a case from going to
court. The internet has made it easier to reproduce images without the
consent of the copyright holder and the laws covering copyright are
constantly evolving in response to new cases.(3) Although the copyright
of images of buildings belongs to the photographer or artist, an
interesting case went through the French courts a couple of years ago
concerning the Eiffel Tower. Photos of the tower at night were deemed to
be protected by copyright law as the lighting display constitutes a
work of art.(4)
I hope this post has shed some light on the issues surrounding copyright of images. A few key points to take away with you are:
- Copyright arises in a work, it does not have to be registered.
- Publicly accessible content is not necessarily in the public domain.
- Record your efforts to trace copyright holders if you intend on reproducing orphan works.
- Stay within the guidelines of ‘fair use’ but bear in mind it will not always prevent legal action.
- Check with your institution’s legal department if you have any doubts about content you intend to use.
(5)(1) This link will redirect to information on the European memorandum of understanding on orphan works http://www.ifrro.org/content/i2010-digital-libraries retrieved on 22/2/2013.
(2) http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law retrieved on 22/2/2013
(3) The difficulties of dealing with such issues are discussed in these articles on policing the internet: http://www.bbc.co.uk/news/technology-17111041 retrieved on 22/2/2013
(5) St Swithin’s Church London Stone. This is a Wren church destroyed in the Blitz and not restored.
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