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Photocopying in Museums and Galleries

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Museum staff photocopy material for various purposes - curatorial, educational and administrative. If the material is in copyright, then photocopying it may infringe copyright.

What is protected by copyright?

Copyright protects a range of different works, including original literary, dramatic, musical and artistic works as well as the typographical arrangement of published works. These include in turn books, periodicals, manuscripts, drawings, maps, plans, photographs, engravings etc.

How long does copyright last?

Copyright usually lasts for 70 years from the death of the author of the work in question (longer in the case of some unpublished works). The period of protection is a complex area, and advice should be sought in any doubtful cases. Once copyright has expired, the work may be copied without infringing copyright.

Photocopying and infringement of copyright

Photocopying a work without permission from the copyright owner is an infringement of copyright, unless the copying is permitted by law (see below). Copying a substantial part of the work may also constitute infringement. What amounts to a substantial part is, generally, a matter of degree. A small but nonetheless vital part of a work may constitute a substantial part for copyright purposes. Photocopying may infringe several copyrights. For example, when printed material is photocopied, both the text and the typographical arrangement of the words on the page are copied. The rights of both author and publisher may therefore be infringed.

Who is liable...?

Any person who photocopies a copyright work without authorisation from the copyright owner, is liable for a primary infringement of the copyright (unless they do so in the course of their employment, in which case their employer will be liable), unless an exception applies (see below). In addition, anyone who in the course of a business possesses or distributes copies, knowing or having reason to believe that they are infringing copies, will be liable for a secondary infringement of copyright.

... and for what?

The copyright owner is entitled to prevent further unauthorised copying, and to financial compensation. An injunction and/or damages are available from the court if the matter is not settled by negotiation.

Exceptions to liability for copyright infringement

In some circumstances photocopying a work will not amount to an infringement of the copyright. Perhaps the most significant category of exception for museums is 'fair dealing'. This can only apply where:

  • the amount copied is fair, i.e. whether the nature and extent of the copying was within the bounds of what was reasonable and appropriate, taking into account the purpose of the copying; generally multiple copying is not regarded as 'fair';
  • the photocopying is for one of the permitted purposes, i.e. for the purposes of non-commercial research and private study, criticism or review or news reporting.

If someone other than the researcher or the student does the copying, (e.g. a curator copying pages to distribute to visitors), then it is not 'fair dealing' if the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.

Photocopying for the purpose of criticism or review is permitted even if the criticism or review is of the work copied or of another work, but must be accompanied by fair acknowledgement such as an identification of the title of the work and of the author.

Some museums manage libraries or archives which are 'prescribed' under the legislation. This means that the librarian or archivist may make and supply copies of parts of published works or articles for persons (e.g. visitors or researchers) who confirm that they require the copy for the purposes of private study and research. Multiple copies are again, however, prohibited.

Some other exceptions may be relevant to museums, such as:

  • copying for non-commercial research or private study or with a view to publication of a literary, dramatic or musical work, together with any illustrations, if it is open to the public in a museum, it was created before 1 August 1989, it has not been published, it is at least 100 years old and its author has been dead for at least 50 years;
  • copying a work of cultural or historical importance which cannot lawfully be exported from the UK unless a copy is made and deposited in an appropriate library or archive;
  • copying works that are open to public inspection pursuant to a statutory requirement; or
  • copying material comprised in public records and which is open to public inspection.

These provisions are governed by particular rules which need to be checked before anything is photocopied. The definition of "non-commercial" copying can be complex and as yet, untested within the law. For more information about what may constitute non-commercial copying, please see the briefing note on the new copyright legislation.

Licensing

If the photocopying is not permitted by virtue of the exceptions described above, then it is permitted only if the copyright owner gives permission. Permission can be obtained from copyright owners direct or via various collecting societies that co-ordinate licensing schemes on behalf of the copyright owners they represent.

Three collecting societies are of particular relevance to museums: (i) the Copyright Licensing Agency Limited (the CLA); (ii) The Design and Artists Copyright Society Limited (DACS); and (iii) The Newspaper Licensing Agency Limited (the NLA).

At present only the CLA and the NLA offer schemes allowing photocopying (on payment of the appropriate fees). The CLA scheme applies to the copying of books, journals and periodicals (including the copying of illustrations accompanying text), while the NLA scheme covers copying of newspapers. In addition, the CLA photocopying licence includes a collaborative scheme with DACS, covering the photocopying of artistic works, the money collected from which is distributed back to artists via the Payback Scheme operated by DACS.

The terms offered by collecting societies are generally non-negotiable, although collective negotiation of terms on behalf of whole sectors is not unknown. Currently no special terms have been negotiated for museums and galleries as a whole. Museums and galleries should consider the terms of the CLA and/or NLA licences carefully, as well as their own photocopying practice. If a museum's photocopying falls within the exceptions listed above, then a licence may not be required. In these circumstances the museum may be invited to sign a form, confirming that no photocopying taking place in the museum infringes copyright. There is no obligation to sign such forms, and museums should avoid signing them.

However, the changed definition of research outlined in the new copyright legislation has serious implications for museums, libraries and archives which provide self-service photocopy activities. This has been analysed by Graham Cornish in his report [link to the relevant place in his report] and the Group will continue to post any significant changes up on these pages relating to this area.

Collecting society licences generally give blanket protection against infringement of copyright for the copying of any works the societies represent. However, the licences do not give authority to copy all categories of works. For example, a licence from the CLA does not authorise copying of maps, charts or books of tables, printed music, photographs, illustrations and diagrams, industrial house journals, bibles and orders of service. Should a licence from one of the societies not cover a particular work then permission will have to be sought from the copyright owner before copies of it can be made.

The Museums Copyright Group gratefully acknowledges the assistance of the National Museum Directors' Conference in preparing this note. Amendments to the note were prepared by Naomi Korn, 2004.

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©2004 Museums Copyright Group