Mike
With a question of this sort there can be no certain answers (unless a judge
gives them). However...
The society's database will certainly attract database right, but probably
not copyright. The database right will be owned by the 'maker' of the
database, ie the person or body who took the initiative and provided the
money, probably the society itself (assuming it has a legal existence).
Using this, the society can control extraction (copying) or re-utilisation
(making available to the public) of the contents of the database or a
substantial part of them.
Ownership of database right is without prejudice to the ownership of rights
in material contained in the database. Thus, the owner of copyright in the
contents also has a power to control use. Moreover, use of the original
registers or the microfilm copy of one set is permissible with the
permission of the copyright owner without reference to the owner of rights
in the database, since the database itself is not being used.
The company which created the registers was owner of the copyright in them
as compilations. It is reasonable to assume that in acquiring the company,
the new owner of the cemetery also acquired its rights, including
copyrights. However, if when the archive received the set of registers it
also obtained from the company an assignment of copyright in them you would
have no problem. I take it that no such assignment was made, so copyright in
the registers held by you remains with the current company. As unpublished
literary works they will remain in copyright until the end of 2039. If the
records were merely deposited on loan, I should expect ownership of them as
artefacts to have transferred to the new company also, but I cannot claim
any expertise on that issue.
The fact that the archive's set of registers was used to compile the
database makes no difference.
OS claims Crown copyright in the National Grid referencing system, so I
suppose it is possible that the company could claim a copyright in the plot
referencing system. No-one has challenged OS on this in the courts so I
cannot say how secure such a claim might be.
Monumental inscriptions would be the copyright of their authors, who might
have been the masons (if there were artistic works for instance), the
executors of the will or the poets who wrote them, if they consist of
original works. Many inscriptions are likely to be unoriginal (standard
forms) or merely a statement of facts.
I think you and the society would be well advised to seek to come to an
arrangement with the company.
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
-----Original Message-----
From: Mike Page [mailto:[log in to unmask]]
Sent: 08 October 2003 14:32
To: [log in to unmask]
Subject: A thorny problem
We are faced with a somewhat confusing problem here in Surrey. Some time
ago the then owner of a very large privately-owned cemetery deposited with
us a set of duplicate burial registers containing tens of thousands of
burials. The registers had been held at the London office of the company
which ran the cemetery, a farther set being maintained at the cemetery
itself. Anticipating heavy demand, we had our set of registers
microfilmed.
Since that time ownership of the cemetery has changed hands and a local
society has, using copies of the microfilms, produced a huge database of
all the burial entries and also surveyed all surviving monumental
inscriptions in the cemetery. The society now wishes to 'publish' this
database, perhaps on our website, perhaps on a linked site and have asked
us whether there are any copyright or related issues. The matter is
complicated by the fact that the new owner offers a paid enquiry service,
using the cemetery set of registers, and this will be undermined if the
information is available online. It is not thought that he makes much
money this way, and the cemetery itself is now seldom used for burials.
Some questions:-
Does the fact that the information has been converted into database format
mean that a new copyright has been created, belonging to the society?
Does the fact that the database was prepared using copies of our microfilms
have any bearing on the matter?
Does the current cemetery owner (or anyone else) have any intellectual
property rights in, for example, the cemetery plot referencing system, or
the monumental inscriptions?
Does the current owner have any claim to the records held here, which, as
mentioned, were deposited by the previous owner, or is it the case (like
manorial records) that if no specific mention is made in the deeds that the
records are being conveyed along with the property/company, then such a
claim is invalid?
Any help on any or all these questions would be greatly appreciated.
Mike Page, head of acquisitions, Surrey History Centre.
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