When is the public domain not the public domain?

letter 'C' with a line through it

In February this year it came to LACA's attention that the Intellectual Property Office was licensing out of copyright works under the guise of the orphan works licensing scheme established last year. In this particular case what clearly appeared to be public domain documentary photographs from the First World War licensed to the Museum of the Order of St John. One such example is this picture of nurses and soldiers outside a tent in Northern France, from their own collection

This raises several important issues:

  1. When can you be certain an anonymous work is out of copyright?
  2. When you can be certain an item is out of copyright in the EU?
  3. What is the benefit of the Orphan Works licensing scheme if some of the items might be out of copyright?

What is the copyright status of works of unknown authorship under UK copyright law?

So, what is the copyright status of works of unknown authorship under UK copyright law?

Section 12.3 CDPA of the Copyright, Designs, and Patents Act 1988 as Amended and revised states that:

If the work is of unknown authorship, copyright expires--

(a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or

(b) if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.

Anonymous photographs of this type are highly likely never to have been published

Anonymous photographs of this age and day to day nature are highly likely never to have been published, and if published, published at the time for some practical information dissemination purpose. Given this LACA wrote to Baroness Neville-Rolfe, the IP Minister asking for an explanation, as to why the IPO were charging a museum for something that appears to be in the public domain, and therefore free of all copyright. The response to our letter is here.

The 1993 Council Directive harmonising the term of protection of copyright and certain related rights ( revised in 2006, and known as the Term Directive for short),  establishes the absolute harmonisation of term for anonymous works that have been "made available to the public" (Art 1.3). So if the photograph had been "made available to the public", most likely published, it is highly probable this was done at the time and therefore would be in the public domain everywhere in the EU. 

In terms of unpublished anonymous works the directive also appears to regulate the duration of such works in Art.1.6 to 70 years from their creation: In the case of works for which the term of protection is not calculated from the death of the author or authors and which have not been lawfully made available to the public within 70 years from their creation, the protection shall terminate.

There is also a further caveat to all of this

There is also a further caveat to all of this. Art 10.1 "Where a term of protection which is longer than the corresponding term provided for by this Directive was already running in a Member State on 1 July 1995, this Directive shall not have the effect of shortening that term of protection in that Member State."  As the sector knows well to its detriment, unpublished works can still be in copyright until 2040 in the UK and this provision predates the Term Directive by many years. However in a further twist to this we can now solidly rely on 12.3 (a) as the work is public domain in the UK. This applies to photographs only if they were never made available to the public and were created after 1 June 1957. The principal issue on which there is doubt is whether the photograph was made available to the public in a relevant way within 70 years of being taken (for the list of relevant acts see CDPA s12(5)(b)).

It's worth noting that it only counts as having been made available for this purpose if that act was done by or with the consent of the copyright owner (CDPA s12(5) proviso and s175(6)). An image of this sort is most likely to have been used straight away or not at all for publicity purposes, but it might be worth thinking about what the purpose in creating it was: it might have been to create a historical record and not to have been aimed at publicity at all.

Interestingly, the Term Directive only harmonises photographs that reflect the "author's own intellectual creation reflecting his personality". (This means unfortunately that only artistic photography is harmonised, and not documentary photographs) What implications does this then if the photographs appear not be be harmonised by the directive at all? If the photographer was British the work would be in the public domain, but if an EU national would we have to check the status of unpublished works in their country of nationality because the photograph is being put online and accessible globally? However  most civil law countries make no distinction between the duration of published and unpublished works. But the work of course is anonymous so this is all theoretical. All these legal entanglements do however painfully illustrate the complexity that libraries, museums and archives face on a daily basis in this country when trying to give the public access online to their history and cultural heritage.

Yet more uncertainty and lack of clarity around duration of term

To make matters more confusing before receiving the letter colleagues from LACA met with a lawyer from the Department of Business and Skills with whom this issue was raised. The lawyer informed us that while the works may be public domain in the UK, this may be irrelevant because of the 2009 European Court of Justice case Sony v Falcon. That is to say we were told just because it was public domain in UK law, if the item was subject to copyright still somewhere else in the EU the UK public domain status would be null and void. So yet more uncertainty and lack of clarity around duration of term.

Having had a look at the case it relates to Bob Dylan's published recordings from the music industry, and whether rights that never existed in one European member state could after the introduction of the Term Directive be retrospectively activated as it were because the item was in copyright in another member state. The ruling from the ECJ was that the Term Directive applies to all copyright works regulated by the Directive still in copyright somewhere in the EU as of 1 July 1995  (even for non-EU nationals). However LACA struggles to see the relevance of the case. The directive doesn't regulate documentary photographs, or does it but simply leaves the duration to the member states? Or is the BIS lawyer right that (even though these documentary photographs were not regulated by the Term Directive) what we really need to do is check the duration of anonymous unpublished works from Latvia to Lithuania and beyond because of the Bob Dylan case?

Where does this leave the sector when dealing with very old anonymous works which are absolutely ubiquitous in our collections?

So with so many questions and unknowables where does this leave LACA, and more importantly the sector when dealing with very old anonymous works which are absolutely ubiquitous in our collections? 

Is the risk associated with potentially out of copyright works sufficient enough to warrant cash strapped public sector organisations taking out resource intensive orphan works licences? 

So what are some next steps for colleagues who are considering taking out an orphan works licence?

  1. Due to the complexity of the duration of copyright, you should familiarise yourselves with the laws around anonymous unpublished works and their (relatively) shorter duration in the UK. 
  2. If you can, consider usage under the new orphan works limitation and exception that was introduced in 2014. It requires the same level of diligent search as the licensing scheme but upfront is free, and can be enjoyed by all publicly accessible educational establishments, museums, libraries and archives.
  3. Uses and works not covered under the orphan works exception that are candidates for the orphan works licensing scheme, need to be evaluated on a cost - benefit basis. If the risk does jot justify the cost and/or the risks can be sufficiently mitigated or even eliminated through organisational insurance and notice and take down policies and procedures, there may be no merit in taking out the orphan works licensing scheme
  4. Alas, the duration of copyright can still be impractically complex and not harmonised in the EU. It also raises for the question as to why a law like copyright, aimed at engendering innovation, is making so burdensome the use of anonymous work that are a century old. This distorts how European citizens can access and interpret their own history.

In addition to this the aim of the  1993 Term Directive was to smooth the "operation of the internal market", in order that "the laws of the Member States should be harmonised so as tomake terms of protection identical throughout the Community". However what we have ended up with in reality is 28 public domains for 28 member states. (Please see this excellent article by Christina Angelopoulos from the Institution of information Law at the University of Amsterdam on the subject.)

This hampers products and services from online publishers such as Europeana, and prevents them from fulfilling their maximum potential.  LACA strongly believes the European Union should look at this as part of their current work programme on copyright reform.

For all these many reasons, harmonisation of term is one of the important platforms of our recently launched London Manifesto, which we urge libraries and archives to support for the reasons outlined in this blog. 

My sincere thanks to Tim Padfield, author of Copyright for Archivists and Record Managers for his comments and suggestions associated with this blog.

We would be delighted to hear views on all this cross-border copyright confusion and complexity!





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