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Computer Copyright for Family Historians

By David Hawgood

Draft of Notes for a talk given to the FFHS seminar on Nov 2nd 1996

These notes do not constitute legal advice. My forthcoming Family Tree Magazine article on Copyright for Family Historians will be available as a hand-out, and the computer talk will follow on from a talk on Copyright by Anne Crawford of the Public Record Office. Much material about computer copyright applies equally to publishing on paper, but comes to the notice of family historians mainly with reference to computers.

1. Be aware of differences between

Also be aware of fair dealing: the law allows limited copying, eg for research

2. When does copyright start? Copyright comes into being when a work is `recorded' and computer storage is just as much a valid recording as a printed book, or sound recording.

3. Your copyright - what you have recorded in your computer. You write a letter, or build a computer database. How do you claim copyright?

As a UK author you do not have to make a specific claim of copyright. As soon as you press a key and the character is stored, copyright exists. But if you just switch off the computer without storing as a disk file (or similar) you cannot prove later that the work was recorded. To show that the work existed, put your name and the date in the file, in such a way that they get displayed to readers, and keep a backup copy.

Until recently there was doubt whether recording as a computer file was sufficient. The first edition of Bainbridge's book recommended the author to print out the database to be sure that copyright is established. The second edition (Intellectual Property by David I Bainbridge, 2nd edition 1994 from Pitmans) drops this recommendation.

4. Copyright in a computer file you have published (or made available for search online) Protection is broadly the same as if you publish a book.

The Aslib Guide to Copyright, edited by Oppenheim, Phillips and Wall, published by ASLIB as looseleaf with updates (£124) - I consulted it in September 1996 - says: "Section 4.2.3 Electronic Formats: There is no guidance or test case as to whether electronic representations of text are equivalent to `typographical arrangements of published editions'. However since . . (they) do result in those arrangements when viewed or printed out, equivalence would seem reasonable."

This means there is some uncertainty whether there is a copyright as an "arrangement" in a computer file which is a re-arrangement of non-copyright material - so maybe you should print it out to be sure.

Here, a new European Union directive will give protection to the maker of a database. It gives the right to prevent unauthorised extraction for 15 years (Article 12 of the Directive). "Fair dealing" will still apply - the Directive says it will still be lawful for the user to quote from or use . . subject to narrow limitations (Section 37 of the directive). And the maker of a database which is the sole possible source for material will have to make it available to others under licence (Section 31).

The European Directive on legal protection of databases is mentioned in Bainbridge 2nd edition (see above), the full text is in the ASLIB guide to copyright (see above), The Directive was published in the Official Journal of the European Community, 1993 C194/144. It is not yet law in the UK - it needs a Statutory Instrument, which will probably be published next year.

One aspect of this which is important to family history societies is to make sure that the copyright in projects belongs to the society, not to the individual transcribers (or the projects co-ordinator). When the work is being created copyright as an "arrangement" and rights of the "maker" of the database may belong initially to an individual transcribing an individual document, or to the editor. It may be advisable to get all transcribers and editors to assign their copyright to the societies.

5. Your file on Internet - If you put a file on the Internet, or allow someone else to put your file on Internet, so that the whole file can be copied free of charge, it is my opinion that you have given anyone in the world a free licence to copy and print it, and pass on electronic copies, but not to distribute or sell printed copies. You still own the copyright, but it would probably be impossible to enforce.

If you provide a search facility but not a file copy facility, I reckon you have given a licence to copy individual records - you are in a much stronger position.

I have no reference to support my view on this - it is a warning to be very cautious about putting material on the Internet if you intend to exploit it commercially.

6. Copyright or permissions for information you have copied into your database - Most unpublished documents are in copyright. There are specific legal provisions for publishing works over 100 years old if the copyright owner is not known, but that does not apply to most documents of interest to family historians. (Many are Crown copyright, many are the copyright of church authorities).

The owner of a document may impose access and copying conditions. These are separate from copyright conditions. One difference is that access conditions can only be specified at the time of access, or when you get the copy; copyright conditions can be imposed later, throughout the life of the copyright.

If you intend to publish substantial extracts from a work, make sure you know who owns the copyright, and what conditions were imposed when you obtained you copy. The best approach is to ask the archivist who holds the document from which you copied.

7. Making indexes, and extracting facts from documents In my general article on copyright for family historians - I am mainly thinking of the individual family historian extracting references to a particular family or name from a variety of sources; with proper acknowledgment, publishing such material usually comes within fair dealing, and does not need permission from the copyright owner. The family history society publication often makes a systematic extraction of particular types of information from every entry in a document. What is the copyright position?

Computer Law by Colin Tapper, 4th edition, Longman, 1989. (450 pages).

This book covers patents, copyright, trade secrets, and other approaches to intellectual property. (It also includes contracts, crime, privacy and procedures.) It has many references to case law in the UK, Europe and USA. Chapter 2, section B4, (page 50-61) is on databases and the following notes are from that. Note that it was written before the European Commission Directive on databases was available.

a) varieties: works of non-fiction . . may collect together copyright items in the same way as an anthology, but more often individual components will not attract copyright, perhaps because they are no more than facts, perhaps because too little originality has been expended in their expression.

b) originality: The 1988 Copyright Act explicitly requires originality in the work to be protected by copyright. Quoting from case law, it says the work must not be copied from another work, it should originate from the author.... (p52) It is well-established that copyright cannot inhere in facts themselves (footnote 154 to case law). View in United Kingdom . . a sufficient expenditure of even uncreative effort may suffice to satisfy the minimum requirement of originality .. (discussion of opposing US views) . . The position in the United Kingdom seems to square better with the opposite view in distinguishing between the expression of one person's name and telephone number which would fail to meet the minimal requirement to justify copyright protection, and the expression of the names and telephone numbers of everyone in the district which certainly would be protected, but which represents an increase in the expenditure of effort rather than of creativity. (p57)

c) fixation and registration: This discusses the problem that a database is never "published" as a whole, but has continuous amendments and additions. It seems that copyright in the complete database is continuously being updated.

d) infringement: (p59) It seems that it is not an infringement to publish an independent index to a copyright work, even though some words and phrases are necessarily borrowed from the original text (footnote 201 refers to case law). ----- To me it seems that the conclusions for family history societies from these extracts from Tapper's book are that an index to an unpublished document does not infringe copyright, and a "transcript" which makes a systematic extraction of facts does not infringe copyright. For example the items included in a parish register entry are specified by laws or regulations, and are facts provided by the persons involved or their relatives.

The other observation for family history societies is that in many cases the owners or custodians of documents welcome transcripts and indexes, co-operate in their production, and have simple procedures for giving copyright permission. HMSO and the PRO have simple procedures.

For parish registers, transcription is encouraged by the Church of England. The "Guide to the Parochial Register and Records Measure 1978" (CIO Publishing, Dean's Yard, London SW1, 1978), issued with the authority of the Standing Committee of the General Synod as an instruction to bishops and parishes, says (section 46) "The best way to preserve registers is to have a photocopy and an indexed transcript made . . . Any competent person known to your Diocesan Record Office who offers to make such a transcript should be encouraged ..." (This booklet also gives guidance about storage and searches of records kept by the parish, and in summarising the Measure says the public right of search remains when registers are in a record office, which does not have to account to the incumbent for search fees).

As typical copyright conditions, stamped on the fiche envelope of the parish register of Easton is "Copyright reserved. Not to be reproduced or publicly exhibited in whole or part without permission from the Norfolk Record Office", that for Grantham has "No reproduction of this document is allowed without written permission from the Lincolnshire Archives".

8 Commercial Licence - In publishing practice, electronic rights are separate from volume (book) and serial (magazine) rights. The commercial aspects are changing fast. For advice see: Guidelines for Writers in Electronic Publishing and Multimedia 32 page leaflet published 1996 by The Authors' Licensing and Collecting Society, 74 New Oxford Street, London WC1A 1EF, phone 0171 255 2034, fax 0171 323 0846. Prepared by ALCS and other societies. Available on-line at http://www.alcs.co.uk. This leaflet contains advice to authors to help them in negotiating contracts with publishers.

A summary of the advice is not to grant electronic rights for more than a few years, because the market is changing so fast, and not to sell electronic rights for a lump sum - insist on a continuing royalty or licence. Producers may claim it is too difficult to make individual payments for small sums of money throughout the life of a product - the leaflet comments that distributing small sums to a large number of people is the core business of ALCS.

9 Programs. Patents and copyright in computer programs are very complex. See Tapper's book (referenced above); also see: Patents for Software - an invitation to BCS Members to express their views by Simon Chalton, Chairman, BCS Intellectual Property Committee, June 1995. 11 page leaflet, published for its members by BCS, 1 Sanford Street, Swindon SN1 1HJ, phone 01793 417417, fax 01793 480270. "Copyright protects the original expression of elaborated ideas and applies to computer programs as literary works. Copyright protection does not extend to cover underlying ideas or concepts. Patents protect novel and non-obvious methods of achieving technically useful results." The leaflet also mentions confidentiality, and contractual rights, as the other methods of protecting intellectual property rights.

It is clear from the leaflet that patent protection of programs is complex, the law and practice vary from country to country (UK, rest of Europe, USA are all different). As advice, if you produce a program, or a "database application", put a copyright statement in the source code, and display a copyright statement when the program is run, eg on the opening screen.

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The copyright in these notes belongs to David Hawgood, who gives permission for GENUKI users to download them, and print one copy for their own use, but not to distribute them The notes contain a number of quotations from books. If quoting these, please ensure that the names of the authors and book titles are retained with the quotations.
[Last updated: 23rd August 2002 - Brian Pears]