Cathy
I am sorry I was on leave when you sent this message.
As I think you have been told, I try to deal with this issue in my book. Please see paras 2.1.18-25, 2.3.7, 2.3.12ff and the chart at 9.1. If you do not have my book, I venture to suggest that you might consider consulting it, or even buying it at:
http://www.nationalarchives.gov.uk/bookshop/details.aspx?titleId=400
It used to be true that all photographs created before 1 June 1957 and over 50 years old were out of copyright. However, under the duration regulations, implementing the term directive, that is no longer true because the latter's provisions apply if they give a later terminal date. The revival provisions are complex, but are based on whether a work was protected by copyright anywhere else in the EEA on 1 July 1995. The copyright term in German was already life plus 70 at that date and Spain gave life plus 80 in some circumstances. There is no need to worry about whether a work actually qualified for protection on the basis of country of origin in a particular EEA state, since the ECJ has ruled that all member states' copyright provisions must apply to any EEA work, regardless of whether it meets the requirements for qualification in the local law.
In my view it is safest to assume that all photographs are protected under the new extended term unless they clearly originated outside the EEA, the USA and Turkey (which also have the 70-year term). However, it is true to say that some images, even of EEA origin, will not enjoy the extended term, notably because some EEA states allow full protection only to 'artistic' photographs. Thus before 1 July 1995, Germany for instance gave life plus 70 to artistic images but only creation plus 25 years to non-artistic and anonymous ones and creation plus 50 for historical documentary photographs. It would therefore be possible to consider individual images one by one to form an opinion on whether they are still protected. This would be time-consuming, would involve knowledge of the laws of all EEA member states and would in any case not be decisive because the putative rights owner and the court might take a different view.
Tim
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Tim Padfield
Information Policy Consultant
Information Policy and Services Directorate
The National Archives
Kew
Richmond
Surrey TW9 4DU
Tel +44 (0)20 8392 5381
Fax +44 (0)20 8487 9219
Websites http://www.nationalarchives.gov.uk
http://www.opsi.gov.uk
-----Original Message-----
From: Archivists, conservators and records managers.
[mailto:[log in to unmask]]On Behalf Of Catherine Sloan
Sent: 19 July 2007 12:14
To: [log in to unmask]
Subject: Copyright in photographs taken pre-1945
We have a number of photographs taken before 1945 and have been led to
believe that they are now out of copyright. We do not know the
photographer for the majority of them. Although there is much information
available concerning copyright we are having great difficulty working out
how and if revived copyright affects such items and indeed if the initial
statement is correct. Please can anyone help?
Many thanks,
Cathy Sloan
Museum Director
Elgar Birthplace Museum
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