1. What is copyright?

In the UK, copyright law is based primarily on the Copyright, Designs and Patents Act 1988 (CDPA) and subsequent revisions. Copyright is part of a group of ‘intellectual property rights’ which also includes trademarks, designs and patents, and confidential information. Related are moral rights and the database right. Copyright is an exclusive and assignable legal right protecting original work which automatically resides with the first author or creator of that work, or their employer. It gives them the right, for a fixed number of years, to reproduce, print, publish, disseminate electronically, perform, or record it. Authors will often assign or transfer copyright ownership to a third party. This might be to another individual or organisation such as a publisher, museum, or archive. There is no requirement to register the work or to claim copyright, though the copyright symbol © with the name of the author and the date is often used.

An alternative to assigning copyright is the granting of a licence. Licences can come with charges, though increasingly collections are being made freely available as open access or with creative commons licences. If you are making your collections available online with a licence for reuse, it is important to make sure you select the appropriate licence for your organisation, and to understand its implications.

2. What does copyright protect and for how long?

Copyrighted works fall within one or more of the following categories, each of which is defined more fully in the legislation. In all cases, copyright expires at midnight on 31 December of the final year.

Artistic works

These may be photographs (printed and digital, including those on social media), painting, drawings, posters, and maps, or three-dimensional such as sculptures. These are protected for the originator’s lifetime plus 70 years. Crown copyright, however, is protected for 50 years from the end of the year of creation (this would apply to certain works including maps and stamps). (For more on Crown copyright see section 3).

Literary works

These are written works using letters and numbers. They could include newspaper articles, song lyrics, letters, reports, lists, timetables and poems, as well as novels. There is no implication of literary merit. These are protected in the UK and many other countries for the creators’ lifetime plus 70 years. For unpublished works by known authors, the copyright lasts longer. A single word cannot be copyrighted, though there may be trademarks associated with it.

Dramatic works

These are performed such as plays, ballet and dance. The copyright lasts for the lifetime of the creator plus 70 years.

Music

Sheet music copyright lasts for the creator’s lifetime plus 70 years. Sound recordings are covered for 70 years from creation.

Broadcasts

This includes TV or radio and the copyright lasts for 50 years from the end of the year of the first broadcast.

Film

Copyright for films lasts for the lifetime plus 70 years of the last of those involved in its creation to die.

Typographical arrangement

This is the layout of a page. It protects the effort involved in creating combinations of typefaces, images and columns such as on the page of a newspaper or the layout a poster. Copyright lasts for 25 years from the end of the year of arrangement.

Many works have multiple types of rights and several rights owners. For example, a book will fall within more than one category. Its cover is probably an artistic work and may also be a literary work if it has extended text, as well as typographic arrangement. The content of the book will be a literary work, regardless of whether it is fiction or non-fiction. There may be photographs or illustrations within the book.

3. Crown and parliamentary copyright

Crown copyright is defined as works made by officers or servants of the Crown in the course of their duties. This includes legislation, government codes of practice, Ordnance Survey mapping, government reports, official press releases and numerous records. The default licence for most of this is the Open Government Licence. The standard term of 70 years after the death of the author or creator does not apply for works in Crown copyright. New Crown copyright material that is unpublished has copyright protection for 125 years from the date of creation. Published Crown copyright material has protection for 50 years from the date of publication. Crown copyright also formerly covered parliamentary materials, however since 1988 materials created for the House of Commons and House of Lords have a distinct status in law as being protected by parliamentary copyright. Parliamentary copyright in a literary, dramatic, musical or artistic work lasts for 50 years from the end of the calendar year in which the work was made.

4. The 2039 rule

The 2039 rule was enacted because under previous copyright law – although copyright expired 70 years after the death of the author of a published work – there was no copyright expiry date for unpublished works. This was changed in 1989 when the CDPA came into force by providing a further 50-year term, to 2039, when copyright in unpublished works where the author died before 1969 will expire.

5. Exceptions to copyright

There are some exceptions to copyright which have typically been made in the public interest. These are exemplified in the updates to copyright legislation in 2014 and largely underpinned by the concept of ‘fair dealing’.

6 Moral rights

In addition to copyright, there are other closely related rights that need to be considered before a work is shared online. Moral rights are about acknowledging, honouring and protecting the reputation of the author or creator.

They give the author or creator the right to:

• be named as the creator (paternity right)
• object to someone else being incorrectly identified as the creator
• object to derogatory treatment of the work (derogatory treatment right/the right of integrity)

7  Performers’ rights

The performer has some rights to a performance. A performance can include drama, dance, mime, musical performance, or a reading. It also includes delivering a lecture, which is something to keep in mind if you have footage of a conference or the suchlike. It is not dependent on whether the content of what is being performed is in copyright, the protection is for the performance itself. The right is breached if, for example, someone has filmed it and broadcast it or shared it online without permission from the performer. Performers’ rights usually last for 50 years from the end of the performance.

8 Trademarks

Trademarks consist of a sign distinguishing the goods and services of a trader. This sign may include pictures, words, logos, or a combination of any of these. These may occur on posters, for example. You can check online to see if a trademark has been registered and its current status.

9 Patents

It may be helpful to be aware of patents. Patents protect ideas which have a purpose or function. They require an application and registration process and last for a maximum of 20 years. To gain protection, the patent must be new and the invention must not have been made available to the public before the application.

10 Data protection, confidential information, and privacy implications

It is also important to think about data protection when deciding whether to share something online. The Data Protection Act 218 and UK GDPR (General Data Protection Regulation) controls how your personal data is used. Personal data is information relating to living people who can be identified from that data. If you are certain that the person in your photograph has died, then data protection will no longer apply. If you are sharing photographs or information about living people, their consent should be sought. This includes photographs of vehicles where their licence plates are visible and the location can be identified. Extra care should be taken when using photographs of children and minors. Where a child, under the age of 18, is identifiable, parental consent is needed. You should be particularly mindful that what you choose to share online should reflect the priorities and reflect the sensitivities of your organisations.

11 Commissioning work

If you have commissioned someone to create some work for you, such as taking photographs, delivering workshops or writing reports, they automatically own the rights to their work unless they have signed a contract that assigns copyright to the person or organisation who has commissioned the work. This means you cannot share it online, via your website, social media or any other platform.

12 Social media

While you can control the terms under which you share work on your own website, when you post something on a third-party site such as Facebook or Twitter, you must abide by the site’s terms and conditions which you sign up to when you post something. Third parties will be able to use your material in any way that is compatible with their terms.

While posting on social media is a great way to raise your profile and promote your collections, it is important to be clear about the terms and conditions to which you are signing up. It is also really important that you are clear who owns the rights of what you are posting at that you are legally entitled to do so.

13 Orphan works

An orphan work is a work in copyright where the rights holder is either unknown or cannot be traced. Copyright of anonymous or unpublished orphan works expires in 2039, unless they were published or first made publicly available before 1969, in which case copyright expires 70 years after such creation, or publication. You have various options if you would like to use an orphan work:

• Make an informed guess about when you think copyright is likely to expire, or whether it has already expired. Carry out a copyright risk assessment to determine whether you use it or not.
• Buy a licence for the UK Intellectual Property Office Remember, this lasts for seven years only, and is for the UK, so it is not suitable if you wish to share the work online as this would be worldwide.
• Use the exceptions to copyright.
• Do not use if the risk is too high or the resources needed to carry out reasonable searches too great.

14 Risk management and risk assessments

Handling copyright and, for the purposes of this resource, determining what you can and cannot share online, is as much about managing risk as it is to do with the law. Risk management is essential for you when you decide whether something is or is not in copyright and whether you choose to share something if you do not have permission to do so. Many of the words used in conjunction with copyright are open to interpretation, such as ‘commercial’, ‘reasonable’, ‘public’ etc. If reasonable efforts have been made to trace the rights owners, and you have evidence to show this, then it is up to your organisation to make a calculated risk about whether to put something online. This is known as ‘due diligence’. Sometimes, there are too many layers of rights, and too many different rights owners, to make researching the rights and getting clearance or licences worth the time that needs to be invested.

Your organisation needs to have a strategy towards risk. Whatever your organisation’s position, it needs to have a notice and take-down procedure so that something can be removed from your website straight away if there is an issue. Your organisation must also have the necessary indemnity insurance to cover any possible claims.

Consider carrying out a copyright risk assessment for your collections. If the risk is low, consider going ahead. If the risk is high, try to get permission from the copyright owner to use the material. If the risk is high and the rights owner does not reply, denies permission, or requests unreasonable sums for permission, do not use the material. Both reputational and financial risks need to be considered. The risk is also dependent on whether the use made of the items is commercial or non-commercial. If your organisation is risk averse, more time will need to be invested in doing online searches, contacting other organisations who might be able to help, and writing to rights holders.

15 Ensuring legal compliance

It is important that your organisation puts appropriate procedures in place to ensure legal compliance and adequate protection of your organisation’s intellectual property. It is also important that copyright policies and issues are communicated to staff and included in training. Whether you share something online or not should be in line with your organisation’s policies.

16 Top tips

• Carry out a rights audit of your collections
• Remember that copyright is as much about risk management as it is about the law
• Perform a copyright risk assessment to determine what to share online (see template).
• Make sure you have a clear take-down policy on your website
• Be clear about terms and conditions before sharing on social media and other third party sites
• Make sure your organisation has appropriate indemnity insurance to cover any infringement claims

17 Tools and templates

Naomi Korn Associates has made freely available a number of tools and templates including:

• Copyright Agreement Template
• Notice and Takedown Policy and Procedure

Further reading

• Copyright, Designs and Patents Act 1988 Copyright, Designs and Patents Act 1988 (legislation.gov.uk) consulted 09/04/2022
• Data Protection Act 2018 Data Protection Act 2018 (legislation.gov.uk) consulted 09/04/2022
• Intellectual Property office (2021) Guidance. Copyright Notice: Duration of copyright (term) Copyright Notice: Duration of copyright (term) – GOV.UK (www.gov.uk) Accessed 09/04/2022
• Resources — Naomi Korn Associates Accessed 09/04/2022
• Oppenheim, C., Muir, A., and Korn, N. 2020. Information Law. Compliance for librarians, information professionals and knowledge managers. Facet Publishing.
• Padfield, T. 2019. Copyright for Archivists and Record Managers, 6th edn, Facet Publishing.

More help here

How do I gain permission to use in-copyright material on social media and websites?

Gaining copyright permission is very important when sharing content online. This step-by-step guide by Debbie McDonnell from Naomi Korn Associates will help you to understand when you need to ask for permission to use content you do not own the rights to and how to go about asking and documenting that process.

 

How do I find rights holders for content I want to share?

This article by Chris Sutherns will provide you with best practice guidance for clearing rights to use others’ works online, allowing you to identify which works require permission and how to go about it.

 

Except where noted and excluding company and organisation logos this work is shared under a Creative Commons Attribution 4.0 (CC BY 4.0) Licence

Please attribute as: "How do I know which items in our collection I can share online? A guide to copyright and sharing your collection online (2022) by Dr. Katharine Walker, Naomi Korn Associates supported by The National Lottery Heritage Fund, licensed under CC BY 4.0