Copyright

Margaret Haig of the Government’s Intellectual Property Office explains everything that family historians need to know about copyright law

Everything family historians need to know

The relentless digitisation of records has made it easier to research your roots than ever before, provided you have internet access. And many of us have invested countless hours in building family trees using our home computers or websites such as ancestry.co.uk and findmypast.co.uk, complete with copies of digitised documents, explanatory notes, timelines, scans of photographs, letters, diary entries… even audio and film clips. But have you ever wondered if you’re breaking the law by doing so? Here Margaret Haig shares her expert advice on the ins and outs of copyright.

How Does Copyright Affect Family History?

Copyright protects all original literary, dramatic, musical and artistic works. For family history, this will include items such as diaries, letters, books, paintings, photographs, songs and poetry. Nonliterary written works are protected as well, such as web content.

Copyright also protects music and sound recordings, which can include oral histories, and film recordings, which can include amateur home videos.

What About My Family Tree?

There is no copyright in facts – for example, names and dates. If you use software to create your tree, it may be that there is no copyright because there are no creative choices, but even if this is the case you may still be affected by the terms and conditions of the software program. If you draw your own tree, it may be protected as an artistic work depending on the originality and creativity in its layout and design.

Who Owns The Copyright Of The Photos In Our Family Collection?

It is usually the creator who owns the copyright, ie the photographer. This is separate from the issue of who may own the physical copy, which could be you, a relative, another person or an archive. Copyright can be transferred by agreement (‘assigned’) during the rightsholder’s lifetime, or inherited after their death.

How Long Does Copyright Last?

The length of copyright varies, but for written, dramatic, musical and artistic works, it is protected until 70 years after the author’s death. Copyright is rarely mentioned in wills but would form part of the overall estate – as an example, if the estate is split equally between three people, those three people would have an equal say in what happens to the person’s copyright material. To copy a work that is protected, you should track down the rightsholder or rely on a copyright exception (see below).

Are Unpublished Works Treated Differently?

UK copyright law treats older unpublished works differently in terms of how long they are protected. If the work is unpublished, generally the copyright will last for 70 years after the death of the creator, or until the year 2039, whichever is later. It is worth remembering that most correspondence is unpublished. This means that an unpublished personal diary that you have from an 18th-century ancestor could be in copyright until 2039, and you would need to track down the current rightsholder to copy it or rely on a copyright exception. Even if you are a descendant, there may be other rights-holders apart from you.

What Happens To Copyright When I Upload A Photo To A Website?

Different websites have different terms and conditions, whether a family history website, a social media page, or even your own website. Some will have terms and conditions that say you grant them a licence to use the image, and some may allow reuse of those images. It is a good idea to check the terms and conditions, and that you have the correct permissions from the rights-holder.

in wills ‘Copyright is rarely mentioned estate’ but forms part of the overall

Do I Need Permission To Use Photographs That I Find Online?

The first thing to think about

is whether the photograph is still protected by copyright. You also need to remember any terms and conditions of the website that may or may not allow you to download the images. If a work is still protected by copyright, you may want to get permission from the rights-holder.

What If I Can’t Contact The Rights-Holder?

Some exceptions to copyright allow limited use of copyright-protected works without the permission of the rights-holder; see gov. uk/guidance/exceptions-tocopyright. Family historians may find the exception on non-commercial research and private study particularly helpful; you just need to acknowledge the creator’s work, and it needs to be ‘fair dealing’.

Fair dealing requires you to consider how a fair-minded and honest person would have dealt with the work. For example, if you reproduce a whole book of poetry that is commercially available, it could be argued that you are creating a substitute for the original book and the owner could therefore lose revenue; but quoting only the poem useful for your research might be fair dealing. You need to think about the circumstances each time on whether fair dealing applies.

If your use falls outside the exceptions – such as publishing your research with copyrighted content in it, or posting images on new websites – then it is not enough just to credit the copyright-holder; you need to get permission first. There is guidance on searching for rights-holders at bit.ly/gov-ukfind-holders, which includes sample searches to give you some help, but if you are unsuccessful then you may be able to apply for an ‘orphan works’ licence. These are used for non-commercial or commercial purposes, including publishing previously unpublished works by relatives, when the holder of the copyright for a protected work is unknown or cannot be found. There is more information at bit. ly/gov-uk-orphan-works.

What About If Something Is In The Public Domain?

The term ‘public domain’ can be confusing – it is better to think about whether a work is protected by copyright or not. If it is not protected, perhaps because copyright has expired, then you can use it however you want. On the other hand, if it is protected then you will need permission to use it, or have to rely on a copyright exception.

How Do I Protect My Own Family Research?

Copyright is automatic, and does not require registration. If you have written your family’s story, you may want to mark it with the copyright symbol ©, your name and the year it was created. If you have digital files of any type, including photographs and text, you may also want to ensure that there is metadata showing the ownership in the file data. People may be able to use your work under different copyright exceptions without your permission, but you can also agree a licence or make the work available under standard licence conditions.

What Does ‘Creative Commons’ Mean?

The Creative Commons organisation developed licences that are used internationally, and are often considered to be the standard. The organisation has its own rules about the different licences and what you can do with works available under those licences. Find out more at creativecommons.org.

Where Can I Find More Information?

There is plenty of guidance on copyright and other intellectual property rights (patents, trade marks and designs) at gov.uk/ipo. You can also email the Intellectual Property Office if you have further questions, although note that we cannot provide legal advice: information@ ipo.gov.uk.