Legal Matters

Whenever community archives groups want to share their collections through websites, social media and exhibitions, it’s likely that there will be some copyright issues to think about.

This guide suggests the steps that community groups can take to manage copyright matters and avoid infringing someone’s copyright.

How might you infringe someone’s copyright?

Making a copy of something that is in copyright without the permission of the copyright owner, is an infringement. This includes:

• Making a digital copy (digitisation)
• Making a copy for display in an exhibition
• Publishing in a magazine or journal
• Sharing on social media
• Taking a photocopy or a photograph of it

Other ways of infringing someone’s copyright include attributing their work to the wrong author or photographer and altering items without permission. More about this is in the section on Moral Rights.

What are the risks?

The risks do vary depending on how well you understand your community. Most donors and depositors really want to make their material available for the community to enjoy. However, you do need to consider that if you infringe someone’s copyright, they could take legal action resulting in financial costs, including the costs of hiring your own lawyer to defend you or negotiate a settlement. They could make lots of visible complaints about you on social media and so damage your reputation. You should also think about how upset someone might be if you put the wrong author’s name against the research that they have spent years compiling and how this might make you seem less trustworthy.

How do you mitigate these risks?

It is best to have a written policy which lays out clearly your intention to abide by copyright law, the steps you take to identify creators of works and the copyright owners, ensure that the moral rights of creators are respected, seek permission to make copies where appropriate and try to ensure that anyone who uses the collections is made aware of copyright law. A suggested policy for community archives to adapt for their own use is available by clicking here.

It’s also best to record as much detail as you can about the creator of a work when an item comes into your collections. Ask the donor or depositor for information or find out if someone else knows more. It’s helpful if your accession form has space to note down details such as the name and address of the photographer or author, or if deceased, their date of death. See our suggested accession register here. And our suggested copyright form here.

If you publish a journal, magazine or newsletter, it’s sensible to ask your contributors to take responsibility for any copyright permissions they need. They might provide you with a photograph or a copy of a newspaper article to accompany their article. Since they know where they got their illustrations from, they are the best people to check whether there are any copyright issues and to ask for permission to use them when necessary. See our suggested information for authors here.

How do you identify copyright ownership?  

1. Confirm that the work is an original work.
2. Identify what type of work it is:  is it a literary, dramatic, musical or artistic work, a photograph, a film or sound recording? The type of work affects whether copyright applies and also how long copyright lasts.
   • Artistic works include maps, plans and diagrams as well as drawings, paintings, engravings, lithographs etc.
3. Find out who created the work.  This could be an artist or photographer or architect but is called the author in copyright law. In most cases the author is automatically the copyright owner and their heirs inherit copyright after the author’s death. There are some exceptions (see 4) but even if the author is not the copyright owner, the author still may have moral rights (see moral rights below) and how long copyright lasts is generally based on the author’s life.
   • The author of a photograph between 1912 and 1989 was the person who owned the material the photograph was taken on at the time it was taken (eg: the negative).  This can be incredibly difficult to ascertain, but as an example, it means that if, in 1965, Jane handed her camera to a passer-by to take a photograph of her with her friends, copyright belongs to Jane and not to the passer-by. If she did this in 1992, the copyright actually belongs to the passer-by. Of course, tracing the passer-by is not exactly practical: more on this below at ‘What if you can’t find the name of the copyright owner’.
   • Films may have multiple authors: the principal director, the author of the screenplay, the author of the dialogue and the composer of the music created for the film.
4. Find out why the work was created: was it commissioned by someone or was it created as part of the author’s employment. If it was created as part of the author’s employment the copyright owner is the employer. If it was commissioned, then the copyright owner might be the commissioner.
   • There are slightly different rules about the commissioner for the periods 1734-1912, 1912-1957 and 1957-1989, depending on whether the work is an engraving, painting, drawing or photograph. This is explained thoroughly in Tom Padfield’s book – see below for publication details.
   • Commissions have to involve some kind of payment and be ordered in advance of the work being created. For example, photographs of weddings by commercial photographers might well be commissioned and the copyright might therefore belong to the commissioner (perhaps the bride’s father or the groom’s father?).
   • If the employer was the civil service, the military or other central government organisations, the copyright owner is the crown.
5. Finally, if you have found the original copyright owner (author, employer or commissioner), try to find our if they have ever assigned or sold their copyright to anyone else.

What if you can’t find the name of the copyright owner?

Works which are still in copyright but where the author is unknown and can’t be traced are called “Orphan Works”. The passer-by who took the photo of Jane and her friends, with Jane’s camera, in 1992 (see above) is the copyright owner but realistically cannot be traced.

Making copies of orphan works is still an infringement of copyright, but you might decide that the risk of a copyright owner getting in touch an objecting to this is fairly low. If you decide to use copies in a website, exhibition or social media you should make clear that you don’t know who owns the copyright. You might want to state in your copyright policy that you will take down any infringing copies if the copyright owner identifies themselves.

You do need to make a diligent search for the copyright owner whenever reasonable. If you have any clues to their identity, try using newspapers or birth and death records to find them. If the author is deceased, you might have to look for their heirs and descendants using genealogical techniques. Do keep evidence of any searches you make. If you have a large collection from one source, you may want to sign up to the orphan works licensing scheme, but this is time-consuming and potentially costly. For more information on “Orphan Works”, click here.

How long does copyright last?

Copyright duration usually expires 70 years after the end of the calendar year in which the author died (even if they are not the copyright owner). However, there are many exceptions, depending on what type of work it is, when it was created, whether it was published or unpublished and whether the author is known or not. The SCA Fact Sheet: Copyright lists the copyright duration of most of the main types of copyright works that are found in archives. The best up-to-date guide is Tim Padfield Copyright for Archivists and Records Managers (London: Facet Publishing, 2019) and this has very helpful flowcharts on copyright duration.

What does copyright law allow you to do?

Community groups can make copies when copyright has expired or make copies with permission from the copyright owner. They can also make an accessible copy for someone with disabilities: for example, this could involve typing the contents in a large print or in different colours or making a braille copy or reading it aloud. In making an accessible copy, be careful to maintain the moral rights of the author (see Moral Rights below).

Community groups can also allow researchers to make copies for non-commercial research or private study. This includes study by an amateur historian for an article to appear in a society’s journal, study for an educational course and study for personal or family history research that is distributed free to a limited group.

Community groups may be able to make preservation copies of items in their permanent collections without infringing copyright provided that the preservation copy is not made available to the public.

Moral Rights

Moral rights are:

• The right of attribution – for the author to be identified (whether or not they own the copyright),
• The right of integrity – the work should not be altered without their agreement
• The right to object to false attribution – not to be wrongly identified as the author of something they didn’t create; and
• The right of privacy of a commissioner – the commissioner has a right to prevent certain photographs and films from being shown publicly, such as preventing a commercial photographer from using photos of a wedding to advertise their photographic skills.

These legal rights have only existed in UK law since 1989, but it is courteous and good practice to abide by them for all your collections. The best way to do this is to make sure that the collections catalogue accurately records the name of the author and that this is used whenever any item is put on display. Most normal use in an archives will not involve any alteration in any works, but if you want to use part of an image in publicity or add comical thought bubbles to a photograph or give it a different title or caption, then you might be infringing the photographer’s moral rights and you should get their permission.

Community Archives may hold personal data and so need to be aware of how to look after this safely.

What is personal data?

• Any information that can identify a living individual, including names, addresses, telephone numbers and email addresses.
• Any information that can indirectly identify a living individual, such as their job title or where they work.
• Any information about a living individual’s health, race or ethnic origin, sex, gender, trades union membership, religious or philosophical beliefs or political opinions.

Where might it be found?

• In email lists and membership lists.
• In forms signed by donors or depositors or oral history contributors or copyright owners
• In the archives collections held by the community archives.

Good practice for current records

• Work out what personal data you collect, where you keep it and how you dispose of it.
• Publish a privacy notice – it’s a legal requirement if you hold any personal data, so it’s best to put it on your website and keep it up to date
• Ask your members, supporters and contacts every year if they still want to be on your distribution list for any newsletters or other information and give them the opportunity to change their contact details or remove themselves from your mailing lists.
• Contact depositors and copyright owners at least every five years to make sure that their contact details have not changed.

Good practice for archives management

• Don’t show personal data in archives to members of the public UNLESS you are confident the identifiable person is deceased OR you have their written permission
• Limit access to donor forms, copyright forms and other records with personal data to designated people who have a legitimate need to know the details
• Make sure that people who need access to forms have been trained in basic data protection
• Don’t give any personal data to any third party without asking each individual for permission first.

Community archives, like all organisations must comply with health and safety legislation.  Risk assessments are a tried and tested way of identifying what could go wrong in an organisation, how that might impact individuals and the organisation, and how you can prevent incidents and recover from them. You can also use risk assessments as one way of managing compliance with other legal matters such as data protection, copyright and the ownership of your collections.

This is not legal advice. This is simply a basic guide how to manage compliance with legal requirements and risks.

Responsibilities

Before you start assessing risks, you need to know who is liable if things go wrong.  If you are a charity, then the trustees are responsible for all decisions and actions. If you are not a charity, then it is good practice to state who holds responsibilities in your constitution.

The Charities and Trustee Investment (Scotland) Act 2005 sections 66 to 70 explains what the roles and functions of trustees are.

If you rent premises or use a community resource, find out what is your responsibility and what is the owner’s responsibility.  For example, do you need to test fire alarms or is that dealt with by the owner?

Developing risk assessments

It is sensible to develop a risk assessment and plan, and a template has been provided which you can adapt to your circumstances.  To use this, start with health and safety matters, and walk round the premises you use and identify what kinds of hazards exist, what is currently done to minimise the risk of someone being hurt and what more could be done.  Think about how you can prevent accidents or incidents, how you can protect people when incidents happen, and how you can recover from accidents or incidents. The template provides guidance on how to assess the level of risk – high, medium or low – and how big an impact it could have on people or collections.

The risks will be different for each organisation, but you should consider the following common risks to people and to collections:-

• Health and safety
• Fire
• Flood
• Theft
• Damage to the collections – deliberate, accidental or environmental
• Information security
• Legal disputes over copyright, data protection or ownership of the collections

Policies

Having policies that explain in broad terms how you deal with health and safety, collections management, rights management and personal information helps to communicate what you do to everyone connected with the organisation.  Policies help people to make consistent decisions and help to protect the organisation from mistakes by individuals. The act of writing policies also helps to identify things that can be improved or made simpler.

Policies will generally include the following:

• Statement of who is responsible for what
• How you will keep up to date with changes in legislation or other requirements
• Arrangements for undertaking risk assessments
• Training arrangements
• Communication arrangements – how you make sure everyone who needs to know something is told about it

 

Procedures

It is good practice to write down what you do to keep people safe and to manage the collections.  For example, you might want to have two people present every time someone climbs a ladder or uses a kick-stool to reach a top shelf.  What should they do if they discover a fire or a flood?  You could include a list of people to contact in an emergency.  You might also want to have written procedures for things that you only do occasionally, such as how to check pest traps (wearing protective gloves) or how to store confidential information.

An archives procedures manual often includes the following sections:-

• Health and safety
• Collections management
• Collections care
• Rights management
• Cataloguing
• Access

Documentation

Ask all your volunteers to read the safety procedures and sign them.

Ask your volunteers to declare any personal health issues that others should be aware of.  For example, does someone have an allergy to mould or dust, or perhaps has a heart condition that could impact what they can do.  Ask them what would make things safer for them and make sure you have an emergency contact.

It’s also useful to record when volunteers have been given copies of any other procedures, such as how to fill in a donation/deposit form or how to work out who owns the copyright of a photograph.

Insurance

Consider what kind of insurance you need and seek advice from an insurance expert.  Think about insurance for accidents to individuals, damage to personal property, damage to the collections, and protection from legal disputes over ownership of the collections, copyright or data protection.