In genealogy discussions on the Internet, for example in fora or Facebook groups, the subject of copyright sometimes arises. It usually crops up in relation to either family photos that have been uploaded to the web or to images from genealogy websites (such as Ancestry or FindMyPast). So I thought it would be worth outlining the rules on copyright.

In the UK the law covering copyright is the Copyright, Designs and Patents Act of 1988 as amended by later legislation. The entire Act can be viewed at http://www.legislation.gov.uk/ukpga/1988/48.  It covers pretty much anything that is a photograph, sound recording, artwork, film or written words. For convenience I will refer to all of these as works.  The main purpose of the Act is to protect the Intellectual Property Rights (IPR) of the copyright owner, by not allowing other people to copy the work except as allowed by the copyright holder.

According to the 1988 act (as amended), copyright belongs to the creator of the work, or if they were employed to create the work then it belongs to their employer. Note that if someone commissions a freelance creator, then the copyright belongs to the creator, not the commissioner. Copyright lasts for a long time.  We are mostly concerned with photos and writing here, and the copyright in these lasts for the life of the creator plus 70 years.  To be precise it expires 70 years after the end of the calendar year in which the creator dies. If the creator is unknown then copyright expires 70 years after the work was created, or if it has been made public in that time then the copyright expires 70 years after the work was made public.  There are a couple of special cases: If a work is produced by the Monarch or somebody working on the Monarch's behalf, then the work is Crown Copyright. Similarly if the work is produced on behalf of Parliament then the work is Parliamentary Copyright. Crown Copyright can last up to 125 years from when the work was produced and Parliamentary Copyright lasts 50 years.

However, prior to the 1988 act different laws would have been in effect. These may affect both who owns the copyright and how long it lasts. An excellent summary is available at https://www.dacs.org.uk/knowledge-base/factsheets/copyright-in-photographs#duration. The chief changes have been that:

  • prior to 1st July 1912 the photographer owned the copyright unless they were commissioned to take the picture in which case it was the commissioner who owned the copyright.
  • between 1st July 1912 and 31st July 1989, the person who owned the material on which the photo was taken (e.g. the negative) also owned the copyright, except that in the case of commissions, the commissioner owned the copyright.
  • for photos taken prior to 1st June 1957 the copyright expired 50 years after the end of the year in which they were taken, except that if the copyright was still in force on 1st July 1995, then it was extended to the photographer's life plus 70 years. In some cases this copyright extension was available even in cases where the copyright had already expired in the UK, but not in some other EEA country.
  • for photos taken between 1st June 1957 and 31st July 1989 the copyright duration depends on whether they were published before 1st August 1989. If they were published the copyright expires either 50 years after publication or 70 years after the death of the photographer, whichever is later. If they were not published, the copyright expires either 70 years after the death of the photographer or on 31st December 2039 whichever is later.
  • for photos taken after 1st August 1989 the copyright expires 70 years after the end of the year in which the photographer dies.

So, if somebody complains that a family photo that they have uploaded to Ancestry (for example) has been copied by someone else who didn't ask permission, what is the situation in copyright terms?

Well, if they are the copyright holder then you might think they have a valid complaint.  But, of course, it is not quite that simple.  Ancestry, FindMyPast, Facebook and similar sites have terms and conditions that will include clauses that:

  • allow them to copy anything you upload to other users (their sites wouldn't really work if they couldn't do this!)
  • require you to be the copyright holder (or have the copyright holders permission) so that you can permit them to copy anything
  • prohibit you from uploading stuff that you are not copyright holder of unless you have the copyright holder's permission

So in our example the person may complain of the copier's lack of manners, but in legal terms they have already given permission for the photo to be copied by the simple act of uploading it in the first place.

Note that on a site like Ancestry, for example, which allows you to set your tree (and its uploaded data) to public or private, the above is true regardless of the setting. I.e. Even if your tree is private you are granting permission for photos to be copied by uploading them. The terms and conditions do not make a distinction between uploads to private and public trees.

And if they did not actually take the photo themselves, then they are unlikely to be the actual copyright holder.  In which case they are the ones at fault and liable to be sued by the copyright holder.  Although it is worth stressing at this point that only the copyright holder can take action for infringement, so that is very unlikely to happen.

This is because, in the common situation where the creator of the work has died, the copyright will have passed according to the Will or usual rules of Intestacy, if there was no will.  As copyright is unlikely to be explicitly mentioned in a will it will have passed to the beneficiary of the residue.  So in practice it is likely that the copyright holder will be unaware of the fact that they are the copyright holder! It could also be argued that the copyright goes with the negatives, but in most cases the negatives have probably been lost or destroyed. Of course, if it has been more than 70 years since the photographer died then the copyright is expired and image is in the public domain. It is worth noting here that the term "public domain", in the context of copyright, has the specific meaning of "out of copyright". Anything on the internet may be publicly available but that does not make it public domain in the copyright sense. It is still copyright.

With images from websites that might be copied and uploaded to other websites the situation is slightly different.  Most commercial websites, such as Ancestry or FindMyPast, will claim to be the copyright holder (or an agent of the copyright holder) for any images or transcriptions that they serve up.  They will therefore not be happy if someone posts on Facebook, or elsewhere, whole images, screenshots or whatever that have been obtained from their site.  The law (and the commercial terms and conditions) allow for some uses of copyright material.  So typically making copies for your own private research or posting a snippet of an image to see what other people think it says will be allowed.  The posting rules for most Facebook groups or other fora usually reflect this.

Now, some people might think "but the Crown Copyright on this page of the 1881 Census has expired, so I can post it", but of course it is not quite that simple.  Even if the copyright has expired, there are a couple of other factors to consider.  The presentation of the image may itself be copyright, in the same way that the typographical layout of a book has a separate copyright to the content.  Anyone can produce their own editions of public domain novels, for example, but you still can't copy someone else's edition.  The only real grey area is the case of a copy of a public domain work, for example a photo of an old painting or a scan of an old photo.  If the copy is a straight mechanical copy of the original then there is no doubt that the copy is also public domain. However, if the copy involves artistic, or creative changes to the original then it may be claimed that it the subject of a new copyright. That would be an argument for the courts to decide, and each such case would be made on its own merits. See the official UK Government guidance at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/481194/c-notice-201401.pdf .

It goes without saying that transcriptions are separately copyrighted works.  But facts are facts and are not subject to copyright, so provided that you write them out yourself that's fine.

Be careful out there!