Some or perhaps all of the recipients of this message might be aware that
regulations to amend UK copyright law have now been tabled and will have a
significant impact on archivists. I have so far not managed to get a note in
ARC about this, so I hope that you will make others aware of the
implications, as widely as possible.
The following message involves changes to the law which must be implemented
in archives across the UK from 31 October. However, please note that what
follows applies to published material and non-public records. Public
records, including those held in places of deposit appointed by the Lord
Chancellor, are unaffected.
The changes are extensive, but there are two which will have an immediate
impact on libraries and archives, and they are closely related. Under
present legislation, fair dealing may be for the purposes of research or
private study, and this covers self-service copying. Also, non-public
records and publications may be copied for readers provided they complete a
declaration form, by which they declare (inter alia) that the purpose of the
copying is research or private study. If a reader completes the declaration
form dishonestly, the archivist or librarian receiving it and supplying the
copies may rely on it, and make and supply the copies, without infringement
of copyright, so long as s/he did not know, and had no reason to believe,
that the declaration was false.
As from 31 October, both sets of provisions will be changed so that:
1. private study is by definition non-commercial, and is purely for the
benefit of the individual (even though the individual's skills might
generally be enhanced so that s/he is able to provide a better service (eg
an archivist doing background study).
2. research will be limited to research for a non-commercial purpose. It is
the immediate purpose of the research that matters, so that a subsequent
decision to use a copy commercially will not make the initial copying an
infringement. 'Commercial purpose' is wide ranging, and covers among other
things:
* research being done by someone in return for payment (eg by a
professional researcher or record agent, or a solicitor, for a client);
* research for a product or service for which payment will be made (eg
a published book (unless there is no commercial benefit, eg because it is
free), a commercial training course, a television or commercial radio
programme).
For copyright published material it is possible to enter a licensing scheme
to cover commercial copying. For information on this contact CILIP (the
Chartered Institute of Library and Information Professionals, formerly the
Library Association) and/or the CLA (Copyright Licensing Agency). There is
no licensing body for unpublished literary works. Therefore, unless an
archivist is willing to infringe knowingly, s/he may not in future supply
copies of records for users whose research is known to be for a commercal
purpose. However, the problem presented by the commercial nature of a
professional researcher's or record agent's work can be overcome if they get
the client to complete the declaration form.
If the archivist or librarian does not know that research is for a
commercial purpose, s/he may rely on a completed declaration form. This
means that no-one in the archive may know. Once a person issuing a reader's
ticket or helping in the search room is informed that a reader's research is
commercial, someone supplying copies ought (so far as the law is concerned)
also to know.
Advice to readers wishing to do self-service copying must in future make
plain to them that they may not make copies of publications or non-public
records if the purpose is commercial research. Notices over self-service
copiers should therefore be amended.
As from 31 October the declaration forms for published and unpublished works
should both be amended as follows (assuming that the form in use follows
closely the one specified in the 1989 library and archive copying
regulations):
In paragraph 2(b) after the word 'research' add 'for a non-commercial
purpose'.
The law has not, so far, been amended to allow copying under the library and
archive regulations of artistic works (such as maps, photographs) unless
they are illustrations to literary, dramatic or musical works. Copyright in
these is not of such long duration as unpublished literary works, but this
remains a very significant restriction which I hope will one day be removed.
However, there is a licensing body for artistic works (DACS, the Design and
Artists Copyright Society) which may be approached if you feel that a
licence is the answer. Also, see below.
There are two other exceptions in copyright law which may provide some
relief.
1. If a literary, dramatic or musical work is available to the public and is
over 100 years old, the author of the work has been dead for at least 50
years, and the present copyright owner is unknown to you, you may make and
supply a copy for purposes of research (unlimited) or private study or with
a view to publication.
2. If the author of a literary, dramatic, musical or artistic work is
unknown (ie the work is anonymous or pseudonymous) and it is reasonable to
assume that the author died more than 70 years ago, copyright is not
infringed by any act done to it including copying and publication. NB
artistic works are included. This is a change which has been implemented
explicitly to provide some relief to archivists, because of the excessive
duration of copyright in unpublished literary works and some unpublished
artistic works.
I hope that this is clear, but if not please ask.
Tim
----------------
Tim Padfield
Copyright Officer
Curator of Photographs
Secretary of the Lord Chancellor's Advisory Council on National Records and
Archives
The National Archives
Kew
Richmond
Surrey TW9 4DU
Tel +44 (0)20 8392 5381
Fax +44 (0)20 8392 5286
E-mail [log in to unmask]
Website http://www.nationalarchives.gov.uk
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