Copyright and accessioning archives

[Jonathan Draper]

I recently received a query from a Norfolk based community archive regarding copyright. I thought the question and my response may be useful to others. In summary, the fact that your receive something for which a third-party owns copyright, doesn't prevent the donor/depositor of records from signing an accession form. You can still preserve copyrighted material, provide access to it and in all likelihood copy extracts from it and use it for educational purposes, without having to seek permission from the rights holder.

Question 1

We have been given some papers relating to our village. Among these papers is a booklet produced by someone who used to live in the village, but we are in touch with its original author. The person who provided the papers has no copyright on this booklet. Am I correct in assuming that as we accession this, the person who provided all of these papers signs the Accession Form, with no claim to own any of the copyright?

Answer to question 1

Correct. The primary purpose of the accession form is to ascertain ownership of the physical items. With regard to accessions received by the NRO, a large proportion include material for which the donor / depositor does not own any copyright or the rights holders are unknown. The donor / depositor has every right to sign the form, even though they may not hold any rights in the material being transferred. We have included copyright on the form because, sometimes, the depositor / donor does hold some rights in the material being transferred and this is a good time to acquire clarification over copyright ownership. 

Question 2

From our correspondence with the original author, she is happy for us to use the booklet, but I do not believe that she wishes to assign copyright to us. Is there a standard template for a licensing agreement that would cover this scenario?

Answer to question 2

The following advice is just my interpretation of copyright legislation and should not be considered professional legal advice. 

As an archive, there are several exceptions within copyright legislation which will allow you to do things with the copyrighted material, without the need to seek permission. You can store the publication for permanent preservation (if it is covered by your collection policy), you can describe it in a publicly accessible catalogue and you can provide access to it for private research. There is something in copyright legislation called ‘fair dealing’ as well as an exemption for libraries (and archives) to provide copies for private study or non-commercial research. Without going into the complexities of the legislation, it is generally viewed that you can provide copies of up to 5% of a published work. Furthermore, for literary copyright, ‘extracts could be fair dealing if they amounted to no more than: up to 400 words in a single quotation; or up to a total of 800 words in a series of short quotations, none of which are longer than 300 words’ (Tim Padfield, Copyright for archivists and records managers, fifth edition published in 2015). There are also exemptions around the use of copyright materials for educational purposes as long as you are not making money out of its use. Again, the 5% rule is a useful one to adhere to for this.

[Charles Butcher]

Thanks Robin, that's really interesting. For the Stanhoe village website I was recently offered a sizeable grant by a company that is using blockchain to archive websites. (They call this the "permaweb", and it sounds a great idea in these days when material that will be important for future historians mysteriously disappears from government websites and social media.) Anyway, this company says we need to assign Creative Commons licences to the stuff they would archive for us – and I don't think that will work. In many cases we have no idea who the copyright owners are, but I take it that doesn't give me the right to assign CC?

[Norfolk Archives Network]

Hi Charles,

thanks for your comment - I think you're probably right that if you don't own the copyright to an item then you can't assign CC to it.

[Charles Butcher]

Jonathan – thanks, and sorry for confusing you with Robin. We met briefly a few years ago when I handed over a DVD of recordings from Stanhoe.

I'm not sure I should have referred to Creative Commons specifically, but the company definitely wants the photos and so on to be in the public domain, so I think it's the same principle. If we have reason to think that copyright exists, even if we have no idea who the holder might be, then we can't say an item is public domain.