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The following text has been archived here from our sister site, the Border Regiment Forum, which is set to close in January 2018. A wiki-based copy of that original post has been preserved here for reference purposes. Note: only selected posts from the forum have been archived (find out why). |
 Posted by kerchi » Tue Sep 25, 2012 9:05 am
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 Field-Marshal Administrator Posts: 2160 In memory of John Bardgett (15309 L/Cpl.) 11th Border Regiment Who died 1st July 1916. |
| This one, it is hoped, will get a few responses pertaining to whether or not war diaries from the First World War can be legally transcribed and shown in a public space and made available for everyone to see (providing no monetary gains are made from it). I have never been quite sure what the legal position is on this subject and would like to know whether or not it is actually allowed.
The war diaries are in the public domain and as long as scanned images of the documents are not shown (unless specific permission has been given) surely there shouldn't be a problem. Can anyone shed any light on this? Are there any implications involved if transcribing these documents? Does any one body actually have copyrights on such documents that are in the public domain? I am always keen to make sure that my projects are legally, for want of a better expression, "ok" and do not infringe on copyrights but I am sure I a have, and many others have in the past, wondered if copyrights are infringed upon with such transcribing projects. With a wealth of war diary information available to us it would be a shame not to somehow make more available here or on the wiki, as I had originally intended a few years ago. |
| Posted by spike » Wed Sep 26, 2012 5:06 pm
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 General Global moderator Posts: 1788 In memory of John Farrer (19455 Pte.) 11th Border Regiment k.i.a. 1st July 1916 |
| I don't know how it stands legally, but morally they should be transcribed for future generations. |
| Posted by mrdeacon » Wed Sep 26, 2012 6:06 pm
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.png) Colonel Registered user Posts: 706 |
 spike wrote:I don't know how it stands legally, but morally they should be transcribed for future generations. Can't add much but i agree with Spike they should be aloud for everybody to read. |
| Posted by plbramham » Wed Sep 26, 2012 9:30 pm
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 General Global moderator Posts: 1369 |
| kerchi wrote: The war diaries are in the public domain and as long as scanned images of the documents are not shown (unless specific permission has been given) surely there shouldn't be a problem. You’ve got me on one of my pet hobby horses here – copyright! In the dim and distant past, over thirty years ago, as part of my journalism qualifications I had to pass exams in newspaper law, which naturally included copyright, and I also attended refreshers in later years. Copyright law includes so many amendments and contradictions it is very hard to give any sort of real definitive answer. As a general rule copyright extends from 90 years after the death of the author or after first publication. Now “publication” does not just mean being printed in a book, leaflet, magazine etc, it is defined as “being made available to a third party”. So as an example (copyright for photos and drawings is the same as for words) if I took your photograph, I am the first party, you and the second party and the third party is anyone who sees that image – even the person developing the film, hence legally it has been “published” and the clock starts ticking for the 90 years copyright from that point. By a strange quirk sending an image or text through the post is classed a “publication”, so in modern terms I guess e-mailing it also fits the definition. Certainly everything we write on the forum is “published” i.e. made available to a third party. (Bear that in mind before you write anything defamatory, but don’t worry too much as you cannot libel the dead and descendents cannot take action on behalf of a late ancestor) All these old photographs you see marked “Photo copyright Joe Bloggs Collection” have no legal basis. You might own the actual physical photo or document, but not the copyright. By that standard I don’t see how genealogy companies can claim to own the copyright. They may have bought the original lists, documents etc but not the copyright of them. Think about it, if you went out and bought a copy of a book you wouldn’t expect that you that you had also bought the copyright too would you? If that was the case thousands of people would be the copyright holders of every single book, newspaper and photograph ever produced. On a similar vein, book reviewers are allowed to quote to a certain amount of text (250 words I think) in extracts from publications. There is also “implied consent”, if you supply a letter or document to a newspaper or other media, you are implying that it is OK by you for them to use it (unless of course it is something which someone else owns the copyright to). The Freedom of Information Act no doubt releases more documents into the mix, but that Act was really to obtain details about yourself or living people, not those in a war a hundred years ago. Information or images deemed in the public domain are also generally completely safe. People get scared about “Crown Copyright”, but that was printed on the documents when they were first produced decades ago. (I hardly think you’ll be prosecuted for quoting documents which could have aided Germany to win the war a century ago). As far as The Official Secrets Act is concerned, I don’t think we need to worry with anything we my discover from so long ago, even Bletchley Park has been in the open for ages. There have been so many precedents set by quoting war diaries or publishing images of extracts, (and I’ve never heard of any prosecutions), that I really cannot see any problem. While there may be some twist whereby legally you are not supposed to, I cannot see anyone prosecuting you. (Actually my terminology is wrong there, you can only be “prosecuted” for a criminal offence, you would have to be “sued” for copyright as it is a civil offence). I guess if you want to be ultra-cautious, don’t tread on toes and play safe by using transcriptions rather than scans of images. To avoid direct quotes newspapers often use what is called reported speech. For example: "I am going into town shopping” said Mrs Brown - is a quote. Mrs Brown said that she was going into town shopping - is reported speech. This is an example of avoiding verbal quote, but it can be applied to text, just change the wording a bit and avoid direct quotes of full phrases so you are not exactly “copying” their words, just using the jist of it. The law is so vague and contradictory I really cannot give a definitive answer regarding the legalities of transcribing war diaries. For that you would need a legal expert specialising in publication and copyright law and even then their interpretation could be contradicted by someone else. I bet that’s opened a few cans of worms! Comments anyone? Cheers Paul. |
| Posted by kerchi » Wed Sep 26, 2012 11:08 pm
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Field-Marshal Administrator Posts: 2160 In memory of John Bardgett (15309 L/Cpl.) 11th Border Regiment Who died 1st July 1916. |
| Copyright is, and always will be, a pain in the proverbial backside because no one, unless you have studied it actually understands how it works or affects first, second or third parties. Some of your comments Paul I already knew but I am hazy on the following:
plbramham wrote: All these old photographs you see marked “Photo copyright Joe Bloggs Collection” have no legal basis. You might own the actual physical photo or document, but not the copyright. So who does own the copyright? This is where I always get confused. Are you referring to someone having acquired old photos such as an individual or group and claiming that now they have them no one else can use them because they are copyrighted to them? Scans of war diaries, if I am correct, are copyrighted because it is an image, yes? So, it is the image itself, not the details in the written contents of the image, that are copyrighted. Therefore, uploading a scanned image of a war diary is in breach of copyright. Is that correct? That's how I understand it. But the actual written information in WWI diaries (being over 90 years since they were created and now in the public domain) do not (or should not) be copyrighted by anyone....it's public. So it should be safe to transcribe the text only, yes? Maybe The Border Regiment Museum said they have copies of the diaries relevant to the regiment and they now own the copyright. How can this be the case? I would really like to know where one stands but I guess copyright is an area shrouded by grey and more grey. Would be interested though to hear other opinions, after all it is interesting all the same. |
| Posted by plbramham » Thu Sep 27, 2012 9:37 am
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General Global moderator Posts: 1369 |
| plbramham wrote: All these old photographs you see marked “Photo copyright Joe Bloggs Collection” have no legal basis. You might own the actual physical photo or document, but not the copyright. kerchi wrote:So who does own the copyright? This is where I always get confused. Are you referring to someone having acquired old photos such as an individual or group and claiming that now they have them no one else can use them because they are copyrighted to them? Exactly. Now this is going to get very convoluted - The copyright (if still within the 90 year rule) still belongs to the photographer (or descendents) or to the person (or their descendents) who commissioned the photographer to take to picture (e.g. the bride’s father for wedding photos, then if he’s died then hence the bride - unless he left his estate to some else, as copyright is treated as an asset), unless the photographer (or commissioner of the photograph) sold the copyright along with the physical print. (Try and prove that one if it was just agreed verbally!)The commissioner of the picture takes precedence over the photographer in owning the copyright, as they paid the photographer to take them, unless the photographer stipulated that the copyright was retained by himself/herself, e.g. to stop people duplicating the images from which he (naturally) wanted to sell reprints himself. The classic example of this was when all the newspapers used The Yorkshire Ripper’s wedding photo, the copyright probably belonged to Mrs Sutcliffe’s father? The papers wouldn’t care as any damages he may be awarded would be negligable, or maybe he actually sold the photo to them? (If the wedding photographer had stipulated that he retained the copyright he would have done quite nicely). Of course once the photo gets outside the 90 years rule things are simple, Copyright has expired, no-one owns it and the image/text is in the public domain. Your other point, you are right; the scan of a war diary is an image so is subject to copyright. (Interesting question - did the person scanning the image actually have the right to copy it? i.e. were they breaching copyright by making the scan?) If the scan were to be over 90 years old (impossible) then that image would be out of copyright. Transcribing the contents cannot be in breach of the copyright – we are lucky in that WW1 diaries are now out of the 90 years rule. There is an interesting way round a copyright image. Say you photographed an image that would be a direct copy so you would be in breach. However, if you photographed someone holding the photograph, even if you just included their hand on the picture, then the original image would form part of your “new image” so you are not in breach of copyright. Crafty eh? The museum, like the people with photograph collections, cannot claim that they own the copyright of war diaries (well they can claim it, but they don’t). Organisations cannot put themselves above the law simply by putting a copyright stamp on a photo or document. However it is sufficient to put most people off using them. If the image/document is over 90 years old, (“published“ as explained in my previous post) then it is out of copyright, no matter what claim anyone puts on it. Guess this has probably muddied the waters still further? It’s a real minefield. Regards Paul |
| Posted by IanT » Thu Sep 27, 2012 12:04 pm
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Major Registered user Posts: 252 |
| Paul, regarding your comment about genealogy companies, are they not (just) claiming copyright of the images or transcriptions they have made & not copyright of the original documents?
Ian |
| Posted by mrdeacon » Thu Sep 27, 2012 5:37 pm
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Colonel Registered user Posts: 706 |
A lot of this is going over my head far too confusing for my tiny brain 
But has some of you no i have just paid and downloaded the 2nd Border Reg diary's so do they not belong to me and can i not do what i want to do with them, like post them onto the Wiki or this forum but say where they came from? Mike. |
| Posted by IanT » Thu Sep 27, 2012 5:48 pm
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Major Registered user Posts: 252 |
| Mike, I assume you downloaded the PDF from the National Archives web site. You can check their terms of use from the 'About Us' tab and the link at the bottom of the page. This will take you to another page, on which one of the links is to Copyright.
Ian |
| Posted by plbramham » Thu Sep 27, 2012 9:50 pm
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General Global moderator Posts: 1369 |
| IanT wrote: Paul, regarding your comment about genealogy companies, are they not (just) claiming copyright of the images or transcriptions they have made & not copyright of the original documents? Ian Good point, yes they could claim copyright of a transcription they had created in "their style" - layout, font etc, which would effectively be a new document. If this is the case their wording really ought to be more specific what it is that they are claiming copyright of (e.g. layout copyright ***** 2012) for clarification. Otherwise the wording can make it sound like they hold copyright of the content which scares people off. Paul |
| Posted by kerchi » Thu Sep 27, 2012 10:47 pm
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Field-Marshal Administrator Posts: 2160 In memory of John Bardgett (15309 L/Cpl.) 11th Border Regiment Who died 1st July 1916. |
| Paul,
A lot of this makes perfect sense but I can see how convoluted this can become when you look at the many different angles. The intricacies of the legalities involved seem to complicate themselves but overall what you say does make perfect sense from a straightforward viewpoint, but things in general when concerning copyright are never that simple, at least they never appear to be as black and white as you'd like, just more of those nasty grey areas creeping in. plbramham wrote:Your other point, you are right; the scan of a war diary is an image so is subject to copyright. (Interesting question - did the person scanning the image actually have the right to copy it? i.e. were they breaching copyright by making the scan?) If the scan were to be over 90 years old (impossible) then that image would be out of copyright. That is interesting because there have been scans of war diaries available at the NA for quite a few years now (I remember ordering some scans about 6 years ago) and if we consider the 90 year rule then war diaries, certainly from 1916-1918, were still in copyright and the person scanning them were violating that copyright unless they were given express permission to do so. As it was the NA I am sure they had permission. plbramham wrote:The museum, like the people with photograph collections, cannot claim that they own the copyright of war diaries (well they can claim it, but they don’t). Organisations cannot put themselves above the law simply by putting a copyright stamp on a photo or document. However it is sufficient to put most people off using them. If the image/ document is over 90 years old, (“published“ as explained in my previous post) then it is out of copyright, no matter what claim anyone puts on it. I think the Museum were just trying to scare me off when they (semi-jokingly, but with a hint seriousness) mentioned I could be fined several times over for transcribing their 11th Battalion war diary a few years ago, that's why I stopped transcribing. I felt a little pressured at the time. I still firmly believe that public domain information should always be freely available to anyone who wishes to see it and shouldn't have to pay a fee for the priveledge, which is why I started the transcribing project a long time ago. It is, at times, a really boring and repetitive job though plbramham wrote:Transcribing the contents cannot be in breach of the copyright – we are lucky in that WW1 diaries are now out of the 90 years rule. This is good to know so if I were to continue transcribing the war diaries for the forum or wiki no one would be able to say no you are in breach of copyright, right? Not that I am going to because I have too much on at the moment. plbramham wrote:There is an interesting way round a copyright image. Say you photographed an image that would be a direct copy so you would be in breach. However, if you photographed someone holding the photograph, even if you just included their hand on the picture, then the original image would form part of your “new image” so you are not in breach of copyright. Crafty eh? This is crafty but interesting to know these little tricks of which this particular one I had no clue about. |
| Posted by plbramham » Fri Sep 28, 2012 12:29 pm
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General Global moderator Posts: 1369 |
| kerchi wrote: I think the Museum were just trying to scare me off when they (semi-jokingly, but with a hint seriousness) mentioned I could be fined several times over for transcribing their 11th Battalion war diary a few years ago, that's why I stopped transcribing. I felt a little pressured at the time. The museum seem to really have difficulties with legal terminology, don't they? You can only be "fined" when you are prosecuted for a criminal offence. As copyright is a civil offence, they would have to sue you for damages (which would cost them money to bring an action unless they won and were awarded costs from you). As you weren't doing it for profit the case would probably be thrown (or laughed) out of court! Paul. |
| Posted by kerchi » Sat Sep 29, 2012 9:15 pm
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Field-Marshal Administrator Posts: 2160 In memory of John Bardgett (15309 L/Cpl.) 11th Border Regiment Who died 1st July 1916. |
At least the war diaries I have on the wiki so far are relatively safe 
Knowing that they are public domain because they are over 90 years old and transcribing (not uploading scanned images) either on the wiki or forum is fine. It is another source of information people will be able to search through and, with any luck, find something of use to them, which makes the effort worthwhile I guess you only have to look on other websites that have transcribed war diaries to know that this is not an isolated case. People really want to be able to share this important public information to everyone without cost and that, to me, is a step in the right direction. |
| Posted by mrdeacon » Mon Oct 01, 2012 5:13 pm
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Colonel Registered user Posts: 706 |
| I have asked Paul Reed about this issue and this was his reply.
Hi Michael, War Diaries are Crown Copyright expired. While images of the diaries can be subjected to copyright if provided by TNA, the actual transcribed contents of a diary are Crown Copyright expired so are out of copyright. The source does have to be acknowledged, however. The issue of Crown Copyright expired is explained somewhere on TNA's website. Hope that helps? Best wishes, Paul
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