Copyright Issues for Archivists

Copyright Issues for Archivists by Tim Padfield, Copyright Officer, TheNational Archives

It has come to my attention that some archivists seem to be unaware of the legal rules surrounding the supply of copies of documents in their collections. I hope that the following notes will be of some help. If they raise further (reasonable) questions please ask me.

Duration
Any literary, dramatic or musical work which was unpublished on 1 August 1989 and whose author died before 1 January 1970 will be in copyright until 31 December 2039, no matter how long ago it was created or when its author died. Any artistic work (such as a map or photograph) by a known author who died less than 70 years ago is also still protected by copyright. What follows applies only to copyright works; once copyright has expired there can be no infringement of copyright (though other rights might apply).

Infringement

The making and supply of a copy of a copyright work is an infringement of copyright unless an exception applies or unless the owner of the copyright has given permission. Unless otherwise stated, it is the person making and supplying the copy who infringes.

There are several different exceptions which may apply in appropriate circumstances. Any or all of them may apply.

Library and archive copying of unpublished works

This is the exception which is most commonly used because it provides clear protection for the archivist. However there is no protection at all if the various conditions are not complied with. In particular note that the exception does not cover any copying:

  • of stand-alone artistic works;
  • of published works; or
  • for the purposes of commercial research.

Any literary, dramatic or musical work which had not been published when it was deposited in a record office or library may be copied in its entirety, and the copy may be supplied so long as:

  • the copyright owner has not prohibited copying;
  • no person is supplied with more than one copy of the same material;
  • the person receiving the copy pays a sum not less than the cost of making the copy including overheads;
  • the archivist or librarian is satisfied that the person receiving the copy requires it solely for purposes of private study or non-commercial research; and
  • the person receiving the copy delivers to the archivist or librarian a statutory declaration form which has been properly completed.

The person completing the declaration form is liable for any infringement of copyright if the form is dishonestly completed or the copy is used thereafter for an infringing purpose. The archivist or librarian is liable for infringement if he or she:

  • is aware that the form has been dishonestly completed (for instance, the archivist knows, or ought to know, that the copy is being obtained for a commercial purpose); or
  • accepts a form which has been substantially amended, for instance by the removal or amendment of a clause to which the user objects.

The statutory form is given in the relevant regulations (SI 1989/1212 Sch 2 form B, as amended by SI 2003/2498, reg 26), which are available online from http://www.legislation.gov.uk/. It is also given in section 9.2 of my book. A form may not be accepted from a professional record agent; the record agent's client should complete it instead if the client's purpose is non-commercial. The form must be signed. The signature may nowadays be electronic if the record office has systems in place which enable it to receive electronic signatures; the British Library has such a system but it is expensive. The signature may also be placed on a printed form which is then faxed or digitised and sent electronically to the record office.

No artistic work on its own may be copied under this exception. An artistic work which is an illustration to a literary, dramatic or musical work, which is being copied at the same time, may however be copied. This might include, for instance, a photograph in a diary or enclosed in a letter, or a tithe map with its apportionment.

No published work may be copied under this exception. There are similar exceptions allowing librarians to copy parts of journals and of published editions. There is no library and archive exception which covers the copying of a published document, such as the manuscript of a work which has been published.

Older unpublished works

Any literary, dramatic or musical work, including any illustration as above but not an artistic work on its own, may be copied and a copy may be supplied for purposes of research (unqualified) or private study or with a view to publication, so long as:

  • it is kept in a record office, museum or other institution where it is open to public inspection;
  • it has not previously been published;
  • it is at least 100 years old; and
  • its author has been dead for at least 50 years.

The copy may then be published without infringement, so long as the publisher does not know the identity of the present copyright owner. Once it has been so published, this exception may no longer be used to supply further copies of the original document, since it is now a published work.

This exception may not be used for the copying of a stand-alone artistic work.

Self-service copying

If a record office permits self-service copying of documents, users may make copies under the fair dealing exceptions. These allow copies of literary, dramatic, musical and artistic works (whether published or unpublished) to be made:

  • by a person acting for him or herself or for someone else, for the purposes of non-commercial research or private study, so a record agent acting for a non-commercial client is covered;
  • for the purposes of criticism or review of that or another work; and
  • of any work except a photograph for the purposes of current news reporting.

Librarians and archivists should not supervise self-service copying too closely lest they be effectively making the copy themselves, in which case the much more restrictive provisions of the library and archive copying exception could apply. However, where the copying is for non-commercial research or private study they must ensure that users understand that they may not make copies of the copy nor may they make a copy for more than one other person. In all cases copies under these exceptions must be accompanied by a sufficient acknowledgement identifying the work by its title and the author. It is essential that users are made aware of the restrictions on copying. To this end it would be best if a poster were placed above the copier or a leaflet were given to all users wishing to make self-service copies, in similar terms to the CILIP posters for copying from publications.

Education

Users from schools, colleges and universities are likely to be covered by licences obtained by their institutions from licensing bodies. These will permit the making of copies for very limited purposes for the use of students and teachers in the course of educational activities. Archivists should expect such users to be able to provide evidence that any copies they require are covered by a licence.

There is no infringement by the doing of anything for the purposes of an examination, which is taken to include the preparation of dissertations and theses. A student may therefore obtain copies of documents so long as those copies are actually to be used in a thesis or dissertation which is to be examined. Archivists should require evidence that this is the case.

Judicial proceedings and statutory inquiries

There is no infringement by doing anything for the purposes of judicial proceedings (i.e. before a court) or of a royal commission or statutory inquiry. A statutory inquiry is one held under a duty imposed or a power given by a statute, so not all public inquiries would be covered, but, for instance, most planning inquiries would. Archivists should expect users claiming these exceptions to be able to provide evidence that any copies they require are actually for the proceedings or inquiry, and should make users aware that use of the copies after the proceedings or inquiry have ended is likely to be an infringement.

Public records

Any records which are public records under the Public Records Act 1958, the Public Records (Scotland) Act 1937, the Public Records Act (Northern Ireland) 1923 or the Government of Wales Act 1998 may be copied and a copy may be supplied without infringement, with the authority of an officer appointed under the appropriate Act. There is no limitation on the purposes for which such copies are required, though users should be aware that they will be liable for any infringing use of the copies. This exception covers public records, as defined, whether held in national record offices or places of deposit.

This advice was issued by Tim Padfield on the 16th March 2012 at The National Archives. Tim has since retired.        
 
The National Archives will continue to offer advice and guidance to assist the archive sector with copyright and related issues.  You should send any future queries to your regular TNA contact in Archives Sector Development or direct to This email address is being protected from spambots. You need JavaScript enabled to view it..