Crown Copyright Protection, Images from the IWM

As far as my understanding goes, TNA apply the personal and educational restriction on all images of documents whatever their source, be it marketing, a paid for download, a TNA supplied copy, those provided by independent researchers or those taken personally by a reader. When applying for a Readers ticket you agree to those terms.

Rights to reproduce, i.e publish, those copies is a separate contract through TNA Image Library.

On setting myself up as an independent researcher I was swifty contacted by TNA and asked to modify the wording of my terms and conditions.

TNA do actively enforce this.

 

I guess - and that's all it is - this is determined by the practicalities of who would sue who and why. Having said that, families can be funny things.

I've freely spread some of dad's photos (although they can't have been taken by him because he is on the photos and 'selfies' didn't exist in WW2) all over the place and, paradoxically, would love to be contacted by the chap who took them because he will have served with Dad and that would be a dream come true.

 

I realise this thread hasn't been posted to for a few months, but I found it during a Google search and have a thought that one of you may be able to answer.

If an image has previously been published in a Crown Copyright publication that has gone out of copyright, then are you not free to copy and reproduce the images in it? I'm thinking of the Ministry of Information wartime publications such as His Majesty's Minesweepers, which were Crown Copyright in 1943, and should therefore be out of copyright.

I realise they don't include every image in the IWM archives, but there's quite a few in them.

 

If you have a copy of a Crown Copyright publication and the copyright has expired then you are free to reproduce the publication and parts there of, including images - as long as all the text and images were originally Crown Copyrighted only.

It does not mean you can use the same image taken from another source like a scan made by the IWM of the original negative.

 

The critical difference is between Reproduction Rights and Copyright. You might have to 'pay' to use an IWM copy of a copyright free photo.
That said its an area where copying is endemic (we all do it) and enforcement is virtually non-existent. You have to be really dumb to get whacked with an infringement notice.

 

Pretty much as I thought then. The publications are a useful source of images - it's just a shame they never produced one on Coastal Forces!

 

Not always - I recently got a takedown notice and had my account suspended by the Bundesarchiv after sharing one of their photos of Calais on my Facebook page - apparently this is verboten.

 

I assume they had permission to take the photo of someone else's property in the first place? With their obvious respect for the law, they wouldn't want to do anything illegal, would they?

 

Not sure whether this has been posted before, but wikimedia commons have posted a number of IWM photos, many of them in high resolution, each time followed with a lengthy explanation of why they are (in their opinion) legally allowed to do so. One example:
File:D-day - British Forces during the Invasion of Normandy 6 June 1944 B5110.jpg - Wikimedia Commons

Extract of their argumentation (my underlining):
(quote)
This image is in the public domain because it is a mere mechanical scan or photocopy of a public domain original, or – from the available evidence – is so similar to such a scan or photocopy that no copyright protection can be expected to arise.
(unquote)

I have no idea whether the fact that it is a "mere mechanical scan" actually voids any claim for copyright protection, nor where this assertion might come from (international copyright laws?), and of course do not believe everything that's on wiki.

Any ideas about the validity of such an assertion?

Michel

 

Presumably, if one uses a camera, or by extension a photographic enlarger then one is creating a new 'work of art' and a scan or photocopy is not considered to re-start a copyright period ? It's a nonsense that public archives are trying to sell reproduction rights to images with expired copyright.

 

I agree totally. I think the IWM claims derive from the "sweat of the brow" concept, i.e. they have invested in machines and labour to produce the scans and are therefore entitled to copyright protection over the resulting scans, whereas this concept has been rejected by various courts of law, including UK ones. See:
Sweat of the brow - Wikipedia

Excerpt:
In a copyright notice on 'digital images, photographs and the internet' last updated in November 2015, the UK Intellectual Property Office confirmed that digital reproductions of public domain images are not protected by copyright, arguing that "according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’."

Basically, it seems that when no creative content has been added to a public domain work, the result remains in the public domain.

Michel

 

We should hurry and download as many IWM photos as possible before the Brexit comes into effect then

Michel

 

You're not allowed to use the 'B' word here ! Actually, we'll be safer afterwards as nothing will be enforceable across borders.

 

My tuppence, from personal experience and of many friends, overzealous image fees on what was freely donated to a major national museum is killing wider engagement, strangling potential authors, and greatly limiting scholarship - completely handing the ground over to far less scrupulous parties.

Science Museum is getting woke to the problem, but museums are far, far behind the curve.

 

Sorry, no political innuendo here, purely legal considerations

It is fair that the IWM should charge (within reason) for their own reproduction costs (i.e. scanning of yet unscanned images, or analogue printing), but any other claim for cash does seem legally unfounded, not to mention the negative impact on research, publication etc. as abundantly and accurately pointed out in this thread as well as many others.

Michel

 

Things may finally not be that simple though:

From TNA's document "Guidance on the implementation of the Re-use of Public Sector Information Regulations 2015"
http://www.nationalarchives.gov.uk/...ment/psi-implementation-guidance-re-users.pdf

Obligation to allow re-use of information unless access is restricted or excluded, or from a cultural sector body (which may decline permission to re-use)

Charging at marginal cost is the default
(...)
The marginal cost default does not apply to bodies in the cultural sector (libraries, museums and archives) which may charge to cover the cost of collection, production, reproduction, preservation and rights clearance together with a reasonable return on investment

In other words, the IWM or TNA may altogether decline permission to re-use, or grant a (paying) license to cover their operating costs plus a reasonable return on invesment.

Which I find acceptable, as it contributes towards financing the Museum, but does not quite match the current IWM policy of charging, not according to their own costs, but depending on the expected use of the medium (book, magazine, print run size etc.).

I would therefore contend that a photo (scan or print) that has been bought from the IWM under their non-commercial license may be used by the buyer as he wishes (including in publications etc.), because he has already complied with the PSI Regulations by paying a price that supposedly covered their costs.

Of course it all comes down to how the charge should be calculated in order to comply with the PSI Regulations: should it be the total yearly operating costs (plus a "reasonable" return on investment - what investment?) divided by the total number of photos/items held by the IWM, or divided by the number of items they sell in a year, or what?

The current system of apparently indexing the price to the expected sales by the buyer does not sound unfair in its principle, provided the resulting price does not discourage potential customers. But obviously the IWM do not seem to understand this simple logic...

Michel

 

They have no investment ! They were gifted most of the images that we are interested in by The Ministry of Information...and it costs them no more to preserve the originals for copying than it does to preserve them for research (which is actually quite difficult if the originals can only be viewed in-situ). That said, I have some sympathy with charging multinationals such as newspapers the going commerical rate but they're far more likely to use something from Getty anyway...once again we come back to photos which they hold that were originally circulated free of charge for propaganda purposes.

 

Interesting thread.

 

The key phrase here is "bought from the IWM under their non-commercial license".
You're agreeing to a contract concerning how you will use that image. It has nothing to do with copyright law.