Request justification of claims of Copyright over scanned copies of out of copyright newspaper pages

The request was partially successful.

Dear The British Library,

The British Library service known as "The Briitsh Newspaper Archive" is claiming copyright over scanned images of newspaper pages that are published at the following site:

<http://www.britishnewspaperarchive.co.uk/>

It is commonly understood by anybody familiar with copyright law that it is not possible to create a copyright work by making a copy of another object.

The Intellectual Property Office have published guidance on this matter which clearly states:

"A work can only be original if it is the result of independent creative effort.
It will not be original if it has been copied from something that already exists."

<http://www.ipo.gov.uk/types/copy/c-appli...>

The British Library claim that this is not the case with their copying, and that:

"The legal advice that we have received is that
where skill, judgement and/or labour are used
in the creation of an image of works that have
fallen into the public domain, a new copyright
will exist."

[email from Chris Morrison, Copyright Assurance Manager, The British Library]

I remain unconvinced that the British Library are able to claim copyright over what I consider to be scanned copies of old newspapers. Having looked at more than 100 examples of the content of the site I do not consider that they exhibit any recognisable originality or creative content that would differentiate them from the originals.

I would like the British Library to justify their position by:

a. Publishing the legal advice that they claim to have received on this matter -- or, if this is not possible, a very detailed argument to defend their position of assuming rights that no other UK subject or institution currently has in law.

b. Publish a detailed description of the production process so that I can determine exactly how much "skill, judgement and/or labour" is required to create the new works over which they claim copyright.

The detailed description in (b) should include the unit cost of the image, the cost of the equipment used to create the image and details about the nature of the production process. I would also like information about the training period required for the operators of the equipment and the financial compensation that they receive, so that I may determine if this is commensurate with the copyright status that they claim for the published result.

This issue is very important -- especially to those of us who work with expensive, high resolution scanning equipment. If the British Library are allowed to claim copyright over digital copies of original objects then that will cause huge legal problems for the operators of scanning services and the owners of the objects that need copying.

I think that it is also important that our IP laws should NOT allow the privatisation of public property -- in this case out of copyright newspaper pages -- which seems to be the case here.

Yours faithfully,

Martin Orpen

Fryer, Jonathan, The British Library

1 Attachment

Dear Mr. Orpen,

Please find attached our acknowledgement of your Freedom of Information
Request 1205.

<<120130 Acknowledgement 1205.pdf>>

Yours sincerely,

Jonathan Fryer
Records Manager (Information Compliance)
Corporate Information Management Unit

E: [email address]
T: 020 7412 7334

The British Library
St Pancras
96 Euston Road
London
NW1 2DB

Dear Jonathan Fryer,

I fully appreciate that you are allowed to restrict the disclosure of certain types of information.

However, if BL claim that both their legal position is privileged and that the nature of the process by which the images are created is also privileged then I will be extremely disappointed.

As that would leave only costly legal action as an option for resolving this issue -- and I really don't think that BL should be wasting public money testing their own peculiar view of what constitutes a copyright work in the courts!

Yours sincerely,

Martin Orpen

Dear Fryer, Jonathan,

I'm very disappointed that you haven't provided a response to my request within 20 working days.

Yours sincerely,

Martin Orpen

Fryer, Jonathan, The British Library

I will be out of the office until Monday 27th February, but I will be
picking up email on an intermittent basis. If you require assistance with
FOI or any other urgent matter, please contact another member of the CIMU
team, or email [email address]. Otherwise, I shall answer your email
as soon as possible.

Many thanks,

Jon Fryer - Records Manager (Information Compliance)

Fryer, Jonathan, The British Library

Dear Mr. Orpen,

Your request was sent to the British Library on Sunday 29th January,
which is not a working day for the purpose of the Act, meaning that it
was not received until Monday 30th January.

According to both the Act and the ICO guidance, the twenty working day
deadline starts the day after the date of receipt, which counts as 'Day
0'. Please see the guidance at
http://www.ico.gov.uk/for_organisations/...
/library/Freedom_of_Information/Detailed_specialist_guides/TIMEFORCOMPLI
ANCE.ashx for more information.

As such, the statutory deadline for compliance with your request is
today, Monday 27th February. A response to your request will be sent out
to you once it is completed later today, in accordance with our
statutory responsibilities.

Given the above, please can you confirm whether you wish me to register
your request for an internal review over your claim that the British
Library has not responded to your request within the statutory deadline?

Yours sincerely,

Jonathan Fryer
Records Manager (Information Compliance)
Corporate Information Management Unit

E: [email address]
T: 020 7412 7334

The British Library
St Pancras
96 Euston Road
London
NW1 2DB

show quoted sections

Dear Fryer, Jonathan,

The deadline for your response set by this web service was clearly displayed on this request.

It would have been helpful if you'd pointed out that you were working to a different deadline earlier.

However, you can ignore this request for an internal review.

I await your response to my request and anticipate it being both full and thorough -- as you've needed all of the twenty working days to complete it...

Yours sincerely,

Martin Orpen

Fryer, Jonathan, The British Library

2 Attachments

Dear Mr. Orpen,

Please find attached our response to your Freedom of Information Request
1205.

<<120227 Response 1205.pdf>> <<R - Schedules 2 & 4.pdf>>
Yours sincerely,

Jonathan Fryer
Records Manager (Information Compliance)
Corporate Information Management Unit

E: [email address]
T: 020 7412 7334

The British Library
St Pancras
96 Euston Road
London
NW1 2DB

Dear Fryer, Jonathan,

I am dissatisfied with your response to my request.

You have failed to answer the primary question: What gives the British Library the right to do what no other organisation or individual can: namely create a new copyright work from a scanned copy of an existing work?

Stating that this is based on legal advice and then failing to disclose that legal advice is unacceptable.

The public interest in disclosure in this matter far outweighs your claim of exemption, as you are claiming an unusual, novel and unproven legal position of asserting copyright over digital copies of works that are out of copyright.

The Intellectual Property Offices's own guidelines state that this is NOT allowed. Copyright works require authorship, originality or uniqueness -- scanned copies have none of these properties. In your opinion "the threshold of originality under UK law is very low", but it is certainly high enough to exclude scans of old newspapers.

I can see a number of reasons why asserting copyright should not be allowed in this situation, including:

1. Brightsolid are able to fully exploit the images using contract law, therefore the copyright serves no purpose.

2. Out of copyright materials already belong to nobody -- maintaining this non-copyright status will not cause availability for the "Nation" to become reduced

3. Asserting copyright means that the British Library is taking that which would be freely available -- after Brightsolid have exploited the works according to the terms of their contract -- and increasing the restrictions on its use.

4. Future claims against the British Library from entities that already own similar scans of works that you have copied who, by your reasoning, would also own copyright of identical images.

Your are effectively privatising public property! Your actions are not retaining an option to make it freely available to the Nation, they claiming an option for future exploitation after the Brightsolid contract has expired.

I am equally dissatisfied with the information that you have provided about the nature of the production process. You claim that your production process is more skilled and more laborious than other forms of scanning but again are refusing to provide evidence of this.

Despite your redactions it is clear from the British Newspaper Archive's web site that they use 5 Zeutschel A0 scanners to copy the newspapers. These 400 dpi document scanners are used in many archives and offer no special features that separate them from other scanning devices. They are designed to copy objects, not create original and/or unique works.

In fact their camera-like design and ease of use -- especially compared to high-resolution drum scanners used to digitise photographic film -- means that they are usually operated by staff who haven't served apprenticeships or had to go through years of training before proving themselves capable of producing hight quality scans.

Unfortunately you didn't redact enough of section 1.2.2 to make it clear that not all of the images produced by Brightsolid are subjected to quality control procedures. This undermines your claim that the images have been subjected to an amount of skilled labour that would permit the assertion of copyright.

I would like to give you the opportunity of reconsidering your use of exemptions and make public your case for claiming copyright over digital copies of out of copyright newspaper pages.

If you fail to do so I'll escalate this matter to the Minister for Culture, Communications & the Creative Industries as I am of the opinion that the privatising of material that is already in the public domain is way beyond BL's remit.

Regards

Martin Orpen

Fryer, Jonathan, The British Library

1 Attachment

Dear Mr. Orpen,

Please find attached our acknowledgement of your request for an internal
review of our Freedom of Information Response 1205.

<<120228 Acknowledgement 2012.pdf>>
Yours sincerely,

Jonathan Fryer
Records Manager (Information Compliance)
Corporate Information Management Unit

E: [email address]
T: 020 7412 7334

The British Library
St Pancras
96 Euston Road
London
NW1 2DB

Dear Fryer, Jonathan,

I do hope that your response will arrive in less than the maximum allowed time and contain more substance than the first.

Please consider the following rulings from the Judicial Committee of the Privy Council (Interlego AG v Tyco Industries Inc [1989]) when re-considering my request:

"Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgement and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no-one would reasonably contend that the copy, painting, or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgement merely in the process of copying cannot confer originality."

"[t]here must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work"

Alterations and embellishments that must be "visually significant"

—Lord Oliver, Interlego AG v Tyco Industries Inc

When Lord Oliver stated that 'nobody would contend that the copy, painting, or enlargement was an "original" artistic work in which the copier is entitled to claim copyright" he was obviously unaware of the British Library's unique process of copying.

Yours sincerely,

Martin Orpen

Fryer, Jonathan, The British Library

1 Attachment

Dear Mr. Orpen,

Please find attached the results of the British Library's internal review
of your request 1205.

<<120320 Response 1213.pdf>>
Yours sincerely,

Jonathan Fryer
Records Manager (Information Compliance)
Corporate Information Management Unit

E: [email address]
T: 020 7412 7334

The British Library
St Pancras
96 Euston Road
London
NW1 2DB

Dear Fryer, Jonathan,

Thanks for your response.

Apologies for requesting that you enter into a debate on this matter.

I shall pursue this matter via my MP as it is my view that:

1. Two sets of secret legal advice somehow don't seem sufficient to me for the British Library to claim copyright on facsimile copies of out of copyright documents.

2. If copyright is dependent on the level of skill and amount of labour that has been expended to create a facsimile copy then you should be able to explain the requirements and thresholds involved to third parties, or reveal those specific requirements in the contract.

3, I find it hard to believe that the British Library awarded a lucrative contract to an external supplier without noting the unit cost of each work over which you now claim copyright. The fact that it costs BL nothing cannot be used as an excuse for you taking no interest in operational matters.

4. You *are* effectively privatising public property. The original documents are out of copyright. You are making copies of them and claiming copyright without case law to support your position. Your obligation is to enable access to this content in perpetuity -- creating new copyright works is more likely to restrict future access and more likely to lead to you monetizing the access once Brightsolid have come to the end of their money-making monopoly over the images.

5. The sections of the contract that I was interested in were only those directly relating to the creation of a new copyright work in each scan .You have used an exemption granted from a previous request which appears to ask for disclosure of the *whole* contract to refuse to publish the very limited information relating only to skill and labour.

6. The ICO judgement is interesting however because Section 15 reveals that you are using BrightSolid to negotiate rights and licenses on your behalf. It is my opinion that this action along with the claim of copyright without case law to support your position suggests that you are operating beyond your obligations under the British Library Act.

Yours sincerely,

Martin Orpen

PE175 left an annotation ()

All of the material BL have written bases the whole argument on their declaration that the copy method used to copy the Newspapers is so good as to make the end product so unique as to aquire a new copyright.
Irrespective of any legal advice this is absolutely not the case, the product you download from the BNA is a low resolution PDF it is poor quality, when BNA started there were many complaints that the copies were unreadable and they had to improve them, i have some of them.
They have no copyright based on their claims about the copies.
They can charge for the service they provide but that is all, the standard downloaded item is so poor as to be just acceptable.
Their web site poor reproductions of the originals has no unique copyrightable properties whatsoever, they even have to offer another service to provide framed and better resolution copies of Newspaper pages.
The pages offered are out of copyright, based on their interpretion of the law, the copies are poor copies at best and that is all they are.

mcolthart left an annotation ()

http://www.theguardian.com/media/2010/ju... regarding J Murdoch taking the BL to task over the digitisation of British out-of-copyright newspapers:

"Patrick Fleming, an associate director at the British Library, says that Murdoch's criticisms are "patently not true" because the library is treading very carefully. Its idea is to digitise newspapers from before 1900 – which should be out of copyright because the copyright in a newspaper article extends to the life of the writer plus 70 years. Meanwhile, Fleming says, "any newspaper published after 1900 will only be made available with the consent of the copyright owner". Once digitised, newspapers will be made available free "in the British Library reading rooms", matching today's print-based model, and online via "a micropayment website" that will be run by Brightsolid as it hopes to sell articles to amateur genealogists and anybody interested in history."

Here we have it in B&W that the BL as recently as 2010 saw newspaper copyright as continuing as it was even AFTER digitisation of British newspapers, ie the 70 year rule still applied to digital images which were not to suddenly acquire "as new" status. So how can one company, Brightsolid, change national, and indeed European, law by suddenly stating that they have copyright to ALL images? This all seems mighty fair and perhaps even illegal!

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