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Copyright for Family Historians

by David Hawgood

Copyright is the exclusive right to make copies of a work recorded as characters, visual images or music (literary, artistic and musical works, drama and film). Copyright is a property; usually it belongs initially to the author, but ownership can then be assigned (in writing) to someone else. It may belong to the originator's employer, or the person commissioning a work. The owner of the copyright can licence others to make copies, for example by publishing in a magazine or book. When the owner dies, it forms part of the estate. Copyright expires after a number of years. The duration of copyright is complicated, it depends on the form of the work, whether it was published, whether it was Crown or Parliamentary copyright. Quite apart from whether a work is in copyright, the owner of a document or other work can make conditions about access to it and what use is made of copies. For example, photography of paintings in stately homes may be forbidden, or may be allowed provided no commercial use is made of the photographs.

Practical implications

There are provisions for making copies for research, and copying extracts from works, which make most of the work of an individual family historian possible with little formality. These are described later in the article, but here is a summary of the practical implications:

  1. You can make one copy of a document, or extract from a book, provided it is for your own research (your family, or paid research for someone else)

  2. You can publish extracts from a work as an article, or report to a client, or book, or computer file - but must quote the author and title of the work.

  3. If you write a magazine article or book you retain the copyright (unless specifically assigned to someone else). You agree with the publisher a licence to copy your work. For a book, the licence is usually a formal contract. For a magazine, it is usually implied - by submitting the article you accept the publisher's standard terms. If you want to publish substantial parts of the article again in another magazine, you need permission from the first publisher; and the publisher needs your permission before the article is published again elsewhere.

  4. If a work is out of copyright, you can copy, publish and sell all or part of it.

  5. To copy or publish substantial parts of a work in copyright you have to obtain permission.

  6. Once you have published a work, other people can copy parts of it for their own research, make short quotations in articles, etc. But if anyone wants to copy or quote substantial parts, they need your permission.

  7. There is copyright in the typography of a published work, and in the arrangement of material in an edition or collection.

Sources of information

This article is an informal summary, and does not constitute legal advice.

The current U.K. law is the Copyright, Designs and Patents Act 1988. Amendments and detail regulations are in Statutory Instruments; relevant are Duration of Copyright and Rights in Performance Regulations 1995, SI 1995/3297; and Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989, SI 1989/1212.

Advice on reproduction of Crown and Parliamentary copyright material is contained in a 7- page public letter from HMSO addressed to "Dear Publisher" available free from the Crown Copyright Unit, St Clements House, 2-16 Colegate, Norwich NR3 1BQ; phone 01603 621000. The latest version is dated 1st March 1996. This and some other relevant material including a "Dear Librarian" letter are available on the Internet at http://www.hmso.gov.uk. The Copyright Unit is happy to discuss individual enquiries by phone with anyone in doubt about the kinds of cases in which permission is required. General Information leaflet 15: Copyright from the Public Record Office, Kew, Richmond, Surrey TW9 4DU is an excellent summary of information about copyright in general, as well as a statement of the particular conditions applying to public records. There is a good appendix on duration of Crown, Parliamentary and private copyright. It is nine A4 sheets; to get a copy send an sae to the PRO. It was amended in January 1996.

Three helpful leaflets (6 to 8 pages each) are available from the Society of Authors, 84 Drayton Gardens, London SW10 9SB at £1 each post free. They are Quick Guide 1: Copyright and Moral Rights; Quick Guide 10: Permissions; and Quick Guide 11: Copyright in Artistic Works, including Photographs. Their Quick Guide 8: Publishing contracts mainly applies to books; it is £3.

There is a useful summary article in The Artists and Writers Year Book available in most public libraries - look at the edition for a recent year, as there have been changes.

The standard book on publishing aspects is A Handbook of Copyright in British Publishing Practice by J M Cavendish, 3rd edition published by Cassell (1993).

I used the book Intellectual Property by David I Bainbridge, 2nd edition 1994 from Pitmans, for information about copyright in computer data and programs. The Directive on legal protection of databases is in the Official Journal of the European Community, 1993 C194/144.

Copyright - A Handbook for Archivists by J B Post & M R Foster, published by the Society of Archivists in 1992, has been recommended to me as giving information about copyright in unpublished material, but is out of print and being revised. The book I actually used for this purpose was a heavy legal text, Copinger and Skone James on Copyright by E P Skone James et al, 13th edition published by Sweet & Maxwell in 1991.

Duration of copyright

The 1988 Copyright Act and the 1995 "duration of copyright" Statutory Instrument extend the period of copyright for published work, and reduce it for unpublished work. For published written work it used to be 50 years from the death of the author, but has been extended to 70 years for authors resident in the European Union. Copyright in unpublished written work was indefinite; for authors who die after 1989 it will be 70 years after death, for authors who died before 1989 it will generally last until the year 2039. Copyright in photographs and artistic works was generally 50 years from the production of the work, and is being extended to 70 years from the death of the artist. Duration of Crown copyright is different: for unpublished text created before 1989, 125 years after creation or the year 2039, whichever is later; for most published text, 50 years from publication; for published or unpublished photographs taken before 1957, 50 years.

There is copyright in the typography of a written work. This lasts 25 years from publication, even if the work is otherwise out of copyright. There is also copyright in the arrangement of material in an edition, compilation, abstract or transcript - even if all the words in the new work come from other works which are out of copyright. Copyright in an edition is the same as that in a new work - it will become 70 years from the death of the editor. But the editor's copyright does not supersede that of the original author. Under European Community Directives, the compiler of a computer database will have a right to prevent unfair extraction for 15 years, even if the material in the database is otherwise out of copyright. A Statutory Instrument is required before this becomes law in the UK. Copyright commences when a work is recorded - on paper, as a photograph or sound or video or film, or in a computer.

Obtaining copies

Obtaining one copy of any material for your research is usually permitted by the law. The 1988 Act says "Fair dealing with a literary, dramatic, musical or artistic work for the purpose of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement". ("Fair dealing" is not defined - publishers and authors associations have suggested that one chapter of a book, or 5% if more, is acceptable).

Librarians or archivists are allowed to make one copy of a magazine article, or part of a published work, or all of an unpublished work, for research or private study. There are some detailed conditions, usually contained in a paper which you sign when applying for photocopies. Note that a copy shop may rightly refuse to copy material which a librarian is allowed to copy under "librarian's privilege". The Copyright Licensing Agency (on its Internet pages) claims that fair dealing and librarian's privilege only allow photocopies, not electronic copies, so the use of scanners and optical character recognition may infringe copyright. The owner of a document or artistic work may impose conditions for allowing access or copying, even if the copyright is held by someone else, or the work is out of copyright. Some documents in county record offices are private property, with copying conditions set by their owners - you may be allowed to make notes but not obtain photocopies.

Publishing extracts from the work of others

Almost any family history, guide to sources, transcript or index derives from material which has been recorded in the past by someone else. So you have to consider the copyright aspects of work you publish. And "publishing" includes making a few copies for private distribution. If a work is out of copyright, you can quote as much as you like without permission. If a work is out of copyright and published over 25 years ago, you can publish all of it in facsimile without permission from the publisher (because the copyright in typography lasts 25 years).

If a work is in copyright, any quotation of a substantial extract requires permission from the copyright holder. "Substantial" is not defined in the Act. The test is much more about whether it is an important part of the original work, whether using the quotation saves the second author time in writing, whether the new work competes with the original one, rather than the quantity of what has been used. There is case law about what is substantial, and what is fair dealing - see legal texts on copyright law for details. If the quotation is fair dealing, for purposes of criticism or review, no permission is needed. You must acknowledge the author and title of the work quoted. The Society of Authors and Publishers Association have stated that a single extract up to 400 words, or a series of extracts (none over 300 words) totalling up to 800 words would be regarded as fair dealing if quoted in the context of criticism or review. One test is how much of your own comment you have added - a 2000 word quotation with 20,000 words of your own commentary and review would probably be acceptable as fair dealing.

The copyright in a literary work (i.e. anything recorded in letters and digits) is in the words used, not the information and ideas. This does not mean that you can simply recast the sentences to avoid infringing copyright, but if you state the information in your own original way you are creating your own work. The book by Cavendish, mentioned above, says it is permissible to quote "information from our common stock of knowledge" from almanacs, catalogues, directories etc. You may publish a previously unpublished literary work which was created over 100 years ago if the author has been dead for more than 70 years, the copyright owner is not known, and the work is open to public inspection, for example in a record office. This is a provision of the 1956 Copyright Act still in force as a "transitional provision" of the 1988 Act.

It is always advisable to ask the advice of the archivist or librarian holding a document before publishing substantial extracts from it. Whatever you quote, you must consider the conditions upon which you obtained your copy originally. You may require permission from the owner of the document you copy - this is separate from copyright.

Can I publish my family history?

A family history is likely to consist of quotations or rewordings of short extracts from a number of different documents, together with a substantial amount of your own text. You can publish this without infringing copyright, and without obtaining permission. If you write an article based on one particular source document, with substantial quotations from it, you will have to be aware of the copyright position. Is the work in copyright? What conditions were made when you obtained your copy? Is your quotation fair dealing, within your review of the material? You can publish copies of almost all family photographs and portraits executed before 1989, with permission from the family member who inherited them. Copyright in photos belonged to the person commissioning the photo or if not commissioned to the person owning the film. Copyright in a portrait belonged to the person commissioning it. For newspaper photographs less than 70 years old, you should ask the publisher of the newspaper.

Can I publish my transcript or index?

I believe that the best advice here is to ask the archivist holding the document. There is usually a straightforward procedure, and in most cases a transcript and index is welcomed because it reduces wear on the original document, or reduces the time taken by readers scanning through frame after frame of microfilm. Crown copyright still subsists in census records and most other public documents in the PRO and GRO (Scotland). You may freely copy extracts of this material for your own private research purposes, but written permission is required to publish transcripts or to make multiple copies. HMSO's Copyright Unit has standard permissions and contracts for all kinds of projects involving census data.

Your copyright

When your work is published, you normally retain the ownership of the copyright, but grant the publisher a licence to make copies in serial form (e.g. in a magazine) or volume form (e.g. as a book). There are other forms - electronic, audio cassette, translation, etc. The licence may specify areas of the world; on books, U.S. rights are often treated separately because of their importance in general publishing. If publishing as a book there will usually be a written contract, which specifies the terms of the copyright licence in great detail. The Society of Authors leaflet on publishing contracts (mentioned above) gives useful advice. If publishing in an academic journal, you may have to assign copyright to the publisher (this can only be done in writing); it is hard for an individual to resist this demand. If publishing in a family or local history or other learned magazine, run commercially or by a society, there will usually not be a written contract. If you submit an article to a magazine you are offering the magazine an immediate licence to publish it on their standard terms, which will usually include the right to republish the pages of the magazine in other forms such as microfiche or on CD-ROM. If the article is published and you (the author) want to offer part or all later to another magazine, you need permission from the publisher of the first magazine. It is usual for the later article to refer to the first one. If you specify that you are offering "First British serial rights" you can publish the material in a book after it has appeared in the magazine, and can offer it to magazines published outside Britain. In the UK and most other countries, copyright protection is automatic as soon as work is recorded. Make sure that your name and the date are recorded within the work. The copyright symbol © (c in a circle) followed by your name and the year of publication provides copyright protection in some other countries, in accordance with the Universal Copyright Convention.

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The article above has been published in Family Tree Magazine. The copyright in the article belongs to David Hawgood, who gives permission for GENUKI users to download it, and print one copy for their own use, but not to distribute it.
[Last updated: 23rd August 2002 - Brian Pears]