Monday, 25 February 2008

Copyright for archaeologists

I am still not a lawyer.

Fortunately, there is a lot of good advice on copyright from The Intellectual Property Office.

Ways of managing your Intellectual Property Rights issues

1. Head in the sand

"We don't have any IPR issues because we're just doing research"
"We redraw the OS base maps so we don't have to worry"
"We've never really thought about it"

If you're not worried about IPR then you're not paying attention.
If you are creating or using text, images or data, on paper or electronically, you have IPR issues: maybe you just don't know it yet.

2. Hope for the best

"Nobody's ever complained"
"It's good advertising for them anyway"
"We don't sell our reports commercially"
"It's out of print"

In many ways this is a worse position than the first one: you sort of know that there is an issue and you shouldn't really be doing what you are doing, but can't be bothered to do it properly. IPR litigation is a growth industry; rights holders employ teams of lawyers whose sole job is to track down and fine hapless misusers. Do you feel lucky? Are you sure?

Some clarity about copyright

"My reports are research so I can include copies of maps" WRONG

Copyright law changed in 2003 to amend the old phrasing which allowed copying for 'private study or research': it became explicitly limited to non-commercial research.

‘Commercial’ is a broader term than ‘profit-making’. ‘Commercial’ is in practice synonymous with ‘directly or indirectly income-generating’. It is also clear that the purpose at the time the request for a copy is made is what is important and so some genuinely unforeseen income at a much later date is not relevant to the question. Your intention at the time must be unambiguously non-commercial.
When deciding whether or not something is commercial or non-commercial, is it the proposed use of the copies or the nature of the requesting organisation that is the decisive factor?
As mentioned above, the purpose for which the copies are required is the decisive factor. This will mean that non-profit institutions will need to obtain permission for some copying ...

Copyright Licensing Agency notes on changes to UK Copyright Law

You should still be able to obtain copies of maps for your own use, but if you are paid for putting the report together, by any mechanism, you will need a licence from the copyright holder to include them.

"If it's submitted as part of the planning process the report is in the public domain" HALF WRONG

There are two different meanings to the term 'public domain'. There is a general meaning of 'not confidential', 'open to public scrutiny'; this is true, of course. The planning process is a public process, and reports will be available. Even where report commissioners seek to control access, public bodies may well under FOI or the Environmenatl Information Regulations have to provide access to them. But this is access, to view and read, not to copy. The second meaning, of 'not copyright protected', is a US legal concept which has no direct application in the UK.

"Information wants to be free" DEBATABLE

Information users certainly want data to be free, but then they would say that. Users are in no position to dictate. The question that has to be asked is whether the information creators want it to be free. They have invested time and resources into creating it; they may feel that, having been paid by someone once, they can release it to the benefit of the world. Or not.

It is interesting to note that the most vociferous advocates of 'free' data are HERs wanting to collect the reports submitted to them into a digital treasure trove, yet they are the ones who are most restrictive about what people can do with their data. (see for example the recent Data Protecion Act thread on HER Forum).

It's an estate map from the 19th century: it can't be in copyright. HALF RIGHT

Old manuscript maps probably are out of copyright (although 70 years after the death of the creator might catch some young surveyor's work in the 1880s), unless they were transcribed later (in the 1930s). But if they are held in an archive, you will also need permission to reproduce the photographic image of the map, which may still be in copyright. If it has been published since 1945 it may be out of copyright: photographic copyright is complicated.

I bought an old postcard, so I own the copyright. WRONG

No you don't. It may be out of copyright, but if it's in copyright, having a copy of it confers no rights on you.

Crown copyright means it's public. WRONG

Crown copyright means that its protection runs for 50 years.

I write the report for my unit. It's my copyright HALF RIGHT

Copyright belongs in the first instance to the creator. Unless, that is, you were doing the creating as part of your employment, in which case it is automatically transferred to them (good contracts of employment say so explicitly). There is a slight grey area if you created say a popular guidebook in your own time based on data from your day job. Freelance workers would hold the copyright and would have to explicitly transfer it to the commissioner if they wanted to own it.

One unexplored complexity is that copyright duration is determined by the creator's death date, even if they no longer hold the copyright. Good record keeping long into the future is a necessity to allow rights to be managed.

It may not be my copyright, but I still have moral rights RIGHT

The main moral rights (which are inalienable and held by the creator (only)) are attribution and protection from derogatory treatment. Attribution is the right to be identified as the author; this right must be asserted. Protection from derogatory treatment provides some recourse for uses which are contrary to the creator's wishes. The case law fro this is weak and contradictory.

Joint copyright solves problems. WRONG

Joint copyright (between several authors or between an author and a publisher) makes problems, because the permission of ALL owners is needed to allow re-use.

I can use a photo from a book because it's a good advert so people will buy it WRONG

It may be a good advert. But nobody appointed you as their agent, and you will not get anywhere by arguing you did it for their benefit, when you should have been asking. Politely. With your chequebook out.

I've traced off the OS map, but the new map is mine. WRONG

If it is derived from OS data, it's still theirs. Only if you can demonstrate not only that you could create an equivalent image using no OS data, but actually did so, are you safe.

OS data is public data: I've paid already in my taxes. WRONG

The Ordnance Survey is self-funding: its survey work on behalf of the government and everybody else is paid for by its licensing and products.


This is for general information purposes and is not intended to constitute legal or other professional advice. You should seek specific legal advice in relation to any particular matter.

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