1709 Blog: for all the copyright community

Monday, 26 October 2015

For Pete's sake! The tribulations of an honest not-for-profit self-publisher

This blogger enjoys learning of the experiences of others and often writes about them.  Sometimes, however, it is otiose for him to add anything since the subject of the blogpost writes with such clarity and eloquence that anything added would only be a diminution.  The following piece by New Zealander Peter McDonald is a case in point.  This is his tale:
Images, copyright and non-commercial self-publishing

It's easier now with
modern technology
Someone once called self-publishing ‘an introspective extravagance for rich dilettantes’. Computers and page-layout software have made that label outdated. Whereas rewriting once required scissors and glue, word-processing now enables inexperienced writers to correct and improve text relatively easily. Whereas photography once involved expensive film in cameras and pieces of glossy paper in physical albums, there’s now no need to buy film or to accumulate cabinets of paper photographs. As computers and scanners and databases have advanced, image-management techniques and policies at museums, archives and libraries have continually developed and changed, in response to the technological developments. Both contemporary and historical photographs have become easier to locate.

Amateurs, without any professional help, can now produce reasonably well-designed e-documents or ebooks. They can also self-publish heavily illustrated e-documents with zero printing costs. However, licences may be required for reproducing some images; these permissions can cost hundreds of pounds or dollars, and even – in the commercial world – thousands. Furthermore, for the self-publisher, lacking a professional knowledge of copyright, the rules that govern the reproduction of images can seem mysterious or bewildering – or both.

I am one of those bewildered amateurs. Self-publishing can be for profit or not for profit; my perspective and that of this article is the not-for-profit one. This article describes some of the issues that have arisen in connection with images that I have obtained over the last eighteen months. I happen to live in New Zealand, but most of the images came from UK sources, and I would have encountered similar issues had I been based in Britain.

The sources of the images included libraries, county record offices, local history societies, local and national museums, local and national film archives, newspaper archives, school archives, National Archives, National Trust Images, the Royal Geographical Society, multinational image companies, and individuals. Some of these bodies, once I had explained the non-commercial nature of my proposed publication, charged only the cost price of reprographics and nil for the permission to publish. Some of the sources did not differentiate between their commercial and non-commercial customers; they charged a standard fee to all their customers. One of the image companies, in recognising that my publication was non-commercial and aimed at just a small number of teachers and educationists, reduced its standard price of about £134 by 30 per cent, making £93 an image, still a sizeable lump out of a New Zealand state pension.

Reproduced below is an adapted version of a query I wrote recently to this company, which supplies images worldwide. When I asked these questions, I was halfway through purchasing several of its older images for reproduction in my publication, which would be freely available (ie at no cost) online. I had read several ‘official’ fact sheets and webpages setting out the legal facts on copyright. The main UK copyright rules for artistic works (including photographs) stipulate the duration of the copyright to be seventy years from the end of the calendar year in which the last remaining creator of the work dies. If the creator is unknown, the copyright lasts for seventy years from the end of the calendar year in which the work was created, although if it is made available to the public during that time (by publication, authorised performance, broadcast, etc), the copyright runs for seventy years from the end of the year that the work was first made available.

Despite the apparent clarity of the law, I had come up against two puzzling matters:

Hi, [Account Executive] 
There are a couple of things I ought to try to better understand before purchasing the five images.

My first query might sound a stupid question to a professional but I’ll settle for the stupid label rather than remain ignorant. One of the licence details is ‘Duration: Up to 3 years’. Tied in with this are the start date (1 Jan 2018) and the end date (1 Jan 2021). The start date is obviously based on my estimate of the date of publication, and will quite likely be correct. But what happens after three years, at the end date of the licence?

My second question is about expiry of copyright. For example, one of the photographs I will probably be buying is [Title of Image], November 1912. Is it known to [Name of Image Supplier] when the copyright on this old photograph will expire? Is this sort of information available to the purchaser?



The response from the accounts executive was helpful on the first question and refreshingly frank but frustratingly vague on the second:

Hi, Pete

Don’t fear, this is anything but a stupid question! In theory, at the end of the initial 3 year license period, you would need to relicense if you were still actively promoting / selling the online book. 3 years is a fairly standard duration for an e-book. That said, I can actually issue a 10 year license instead, which would be at the exact same price. At the end of a 10 year period, once again, you would need to pay an additional license fee if you did want to keep selling that e-book.

In reference to your 2nd question, I’ll be honest with you – I’m not entirely sure of this myself. To the best of my knowledge, there is very little content upon which copyright simply expires. On very, very well-known images which are absolutely iconic then it is possible that the image becomes widely available via creative commons but this is under exceptional circumstances and is only likely to happen on images that are absolutely known, the world over.

Generally, if [Image Supplier] owns copyright on an image, we own it indefinitely (or at least until the original photographer / estate of that photographer decides to remove the image from our collections).

I hope this helps you to some extent?

Thanks and Kind Regards

[Account executive]

What are we to make of this advice from a professional? Is it correct? Or is it obfuscating (even if well meant)? The implication seems to be that the company does not know whether the photographer is alive or dead. You get the feeling that, even if the company did know that the photographer was dead, and when he or she died,  this vital information would not be readily disclosed to customers. When in doubt about a particular image, it seems, a cautious publisher should assume that the photograph was taken by a twenty-year-old photographer who lived to be a hundred, thus resulting in a total copyright period of 150 years (eighty plus seventy). At the other extreme, the photographer may conceivably have died shortly after taking the photograph, resulting in a total copyright period of little more than seventy years. In actuality, the total copyright period may often be somewhere between the two extremes.

The laws of copyright that apply to images, heavily influenced by commercial publishing and made intricate by years of legal precedent, and further adapted to cater for electronic images, are a lawyer’s festival of complexities. Even professional librarians and archivists sometimes need specialist legal advice on particular cases. In 2009 Maureen Callahan of the University of Pennsylvania Museum Archives wrote an article titled ‘Copyright for Dummies (Like Me)’. She began: 
‘As far as I can tell, many archivists take a cross-your-fingers-and-pray-like-hell approach to copyright. We err on the side of openness, make a lot of reproductions, and generally feel embarrassed that we haven’t slapped more images onto the internet (ergo this blog). If there’s ever a struggle between access and copyright concerns, access usually wins in my book.’[1]
Public access in Burton: easier
for beer than for images?
I interpret this candid statement as a leaning towards allowing the use of material – particularly orphan works – even at the risk of infringing someone’s copyright. This may be the approach of some archivists. Others follow a less liberal and less risky road.
Burton Library in Burton-upon-Trent has a large collection of archival photographs. Kevin Gallagher, a local historian, provides a local-history website as a not-for-profit service to the community. He has complained about what he considers to be a reluctance of Burton Library to allow access to and reproduction of the images in its collection. He only requires low-resolution versions (for his webpages), but, he says, the necessary permission is still withheld. He explains the background to the Burton Library collection: 
Most of [the Burton Library archive] is comprised of collections that were freely donated to a PUBLIC archive in the hope that they would provide the best PUBLIC access … I, and other local historians and authors, have been denied access on the basis that many are now of unknown ownership so the copyright MAY belong to someone … These issues are slowly but very surely becoming the death of this website as I move to less resistive projects. It is a fraction of what it would have been with co-operation.[2]
I hasten to add here that my own one experience of enquiring about an image at Burton Library met an immediate and helpful response. Likewise, my wider adventures in obtaining images and permissions from numerous bodies in Britain have mostly been satisfactory and eventually successful, despite a persistent and ubiquitous haze of legal uncertainty. The case of Kevin Gallagher and Burton Library is an example of a more serious access-and-use issue that may be widespread and which involves text, such as diaries and letters, as well as photographs.

The Chartered Institute of Library and Information Professionals (CILIP) helped to bring about reforms in 2014 that rebalanced the UK’s copyright regime. These reforms were ‘crucially important for not-for-profit libraries and archives in the digital age, helping them serve their users more effectively, and [to] reduce costs and overheads’.[3] The Libraries and Archives Copyright Alliance (LACA) and CILIP are running the campaign Free Our History, in an attempt to make important historical material freely and lawfully available.[4] They point out that a work under copyright protection cannot be reproduced without the permission of the rights holder, but that 50 per cent of archival records are orphan works whose rights holder cannot be identified and/or traced.

I had never heard the term ‘orphan works’ until recently. The term appeared in an email I received in connection with a reprographics order that I had submitted to a county record office:
Regarding copyright, as photographs created before 1957 and made available to the public in 1970 [when the photographs were deposited at the record office], the images are in copyright until 2040. [Name of record office] is not the copyright owner and cannot therefore provide authorisation for publication to go ahead. It is the responsibility of the publisher and  author of the new work to confirm if the copyright owner can be traced and permission to publish  obtained. Works of unknown authorship are known as orphan works and if you intend to reproduce, publish or otherwise display an orphan work, you should purchase a license, for both commercial and  non-commercial use, from the Intellectual Property Office (IPO).

Please note that there is a fee for a licence. Typically for non-commercial use a licence will cost 10p (exc.  VAT) per item, but for-profit licences will be substantially more expensive. Please also be aware that you will also be asked to pay towards the administration of the licencing scheme. This fee starts at £20, and  rises with each subsequent document you want to licence. For further information on the Scheme, please see The IPO’s Overview for Applicants.  To apply for a licence, click here. Click here to view those works which have been granted a licence.
Now. Put yourself in my position. All I wanted were digital copies of about twenty small monochrome photographs taken in 1950 and of interest only to a handful of teachers and educationists. But I was being drawn into what appeared to me to be a recently invented new bureaucracy, potentially time consuming and expensive. Each of the twenty photographs would need licensing. Undeterred, determined to beat the system, I downloaded and printed the seventeen-page Orphan Works Licensing Scheme Overview for Applicants. Trawling carefully through this document, I was soon mentally planning twenty diligent searches, and wondering whether a previous diligent search had been carried out under the EU Directive with the details published on the Office for Harmonization in the Internal Market (OHIM) database. Half an hour passed before I reached a particular paragraph on page 14:
4.6 TerritorialityWe can only issue licences for the UK. An orphan works licence will cover the lawful use of the work in the UK only. It is the responsibility of the organisation or person using the orphan work to ensure that they comply with the law of any other jurisdictions where they may wish to use the work.
Phew. Bloody great! Although the subject of my writing is a place in England, I will be publishing the document online in New Zealand, which has no equivalent to the UK’s orphan-works licensing scheme. Praise-be to colonial backwardness.

Pete McDonald
22 October 2015

[1] Maureen Callahan, ‘Copyright for Dummies (Like Me)’ (13 Feb 2009) [accessed 16 Oct 2015, here].
[2] Kevin Gallagher, ‘The Local History of Burton upon Trent: Copyright Issues’ (2015) [accessed 17 Oct 2015, here].
[3] CILIP, ‘Changes to UK Copyright Law – Update’ (8 Dec 2014) [accessed 22 Oct 2015, here].
[4] CILIP, ‘Free Our History’ (31 Mar 2015) [accessed 22 Oct 2015, here].


Andy said...

I have had the advantage of reading Pete's article before publication, and it tells a familiar story. There are many issues around clearing old works which may or my not still be in copyright, and photographs pose a particular problem, because of the way they were once treated for copyright purposes, for instance in the British 1911 Copyright Act which was copied widely in other countries of the former British Empire.
Most people, including archivists and librarians, tend to have only a vague grasp of copyright law and can thus fall into the two categories Pete mentions: very helpful or overly cautious. To this must be coupled the fact that, increasingly, museums and libraries are facing funding shortfalls, and so are very aware of the need to monetise their collections where ever possible. This has led to situations such as the dispute between the UK's National Portrait Gallery and Wikipedia in 2009 (Francis Davey has explained the legal issues on his blog so I won't re-iterate them here). Because these disputes are often settled without reaching court, the commonlaw remains unclear about such situations, adding to the uncertainty facing historians and authors which Pete has written about.
Initiatives such as those he mentions, by LACA and others, to free up the vast stocks of old images held by these institutions are laudable, but as Pete found with the UK Orphan Works licensing scheme which was supposed to address some of these issues, many problems still remain.
What I find most troubling is that although we are well aware of how easily a work can become orphaned, and so lead to all the sorts of problems Pete has encountered, no effort is being made to prevent this occurring with present day works and so perpetuating exactly the same headaches for future historians. In the digital age it is relatively simple to run a formal registration system like the US Copyright Office, where authors who wished to actively protect their copyright could do so; instead we get well-intentioned but, in my view, wholly inadequate projects like the Copyright Hub which suffers from exactly the same territorial limitations as the IPO-run Orphan Works scheme. We need an international initiative and preferably one which removes the Berne Convention objection to formalities (Article 5 (2)). WIPO needs to take the initiative and set about addressing both the past and the future from a worldwide perspective, rather than endlessly extending the term and scope of copyright which largely benefits large corporations, but fails the heirs of mere authors, and more the point, the public good.

John R walker said...

Andy re the licencing of orphans for 10 p, rather than a fair use approach, surely it's a classic case of this:

"The model contemplates a bureaucrat who heads a public administration department, and who will try to maximize the department's budget, thus increasing its salary and prestige.

There is a demand for the department's services on the part of electors and voters, but, contrary to publicly managed firms, which directly offer their products and services to these electors, the department is responsible for producing the services which will then be supplied by the Legislature to the electors.

It will therefore be the legislature, or Government, the agent which defines the department's budget, depending on the quantity which it supplies. The more services the department supplies, the higher will its budget be. Therefore, the bureaucrat's objective will be to maximize the quantity of services supplied, subject to a social welfare break-even constraint. This means that the dead weight loss generated by excessive production of services must never be higher than the elector's consumer surplus (otherwise, the Legislature would notice that something was wrong with the department's activity, which would be causing social losses and not gains).

In other words, a typical, private-sector utility maximizing model would anticipate that the department would expand services (and budgets) to the point that the marginal cost and marginal benefits are equated. In Niskanen's model, he would predict that average costs and benefits would be equated instead of the marginals."

Andy said...

I have to admit that most of that went straight over my head. I think I will let a proper economist (are you there Nicola? deal with that.
But in any case, I am more concerned, like Peter the author of the article, with clarifying and simplifying the process of freeing up very old works from the tangle of copyright and quasi-copyright restrictions, so that today's innovators can use these valuable resources which will otherwise remain stored away in dusty stacks.

John r Walker said...

Re Niskanen's budget maximizing bureaucrat

in this case.
The costs of issuing 'ten p' licences are well above the benefits, except that it does create the ,need- benefit of extra jobs in the system that does the licensing, ( the money for which surely would have to come out of some sort of cross subsidie)
And then there are the significant costs for Peter and also the costs of the loss of free educational material that is not published because it is too hard. In short the costs of the system are out of proportion to the marginal benefit, very inefficient. But also very attractive to some.

John R walker said...

Andy the full cost of liscening a orphan work through the IPOD system is 10 pence , plus from memory a admin fee of about twenty pounds. That ratio of admin costs to benefit is exactly what a budget maximising bureaucrat dreams of.