Before you digitise a collection you must find out whether you have permission to do so. You must also find out whether you have permission to share those images for their intended purpose. You will need to know:
Information about item ownership should be in your accession paperwork.
If the paperwork confirms you own the item or collection (eg it was given to you as a gift) it should be fine to digitise it. This is subject to intellectual property rights.
If you do not own the item or collection (eg it was given to you on loan) the conditions of deposit on your accession paperwork should tell you if you have permission to digitise or if you need to get permission from the owners.
If you do not have any accession paperwork and do not know the conditions of deposit for the item then you need to decide how risky it will be to digitise.
For example, if there is a high chance that you do not own the originals and the owner is likely to object, your decision should be not to digitise.
IPRs help stop people stealing creators’ works, or copying them without permission. IPRs include copyright, patents and trademarks. It is sometimes difficult to work out what intellectual property rights there are, who owns the various IPRs, and the duration of those IPRs.
The most common IPR relevant to the work of community archives is copyright, particularly artistic, literary and performance copyrights.
The author or creator of an item (eg the author of a letter or the person who took a photograph), or their employer, are usually the first copyright owner.
Duration of copyright can depend on several factors and can vary from 50 years after publication to 125 years after creation. Literary copyright in unpublished archives does not expire until 31 December 2039. So there is a strong likelihood that your material is still within copyright. This means you should think about the risks and if necessary look for professional advice from the Norfolk Archives Network Forum.
Two questions to consider are:
If the answer to both is ‘yes’, avoid digitising and sharing the item. If the answer to both is ‘no’, the risk of breaching copyright is low. There are also some exemptions in the legislation which allow for copies in unpublished works for private research purposes and for the purposes of preservation.
The National Archives website has more useful information.
Orphan works are items that have no obvious or traceable authorship.
You should always make an effort to trace the authorship of an item. However, if you have made a reasonable effort and still have no knowledge about the copyright situation, you may wish to consider the risks of publishing the item on your website or social media.
In many cases, orphan works can be published 70 years after creation, so if an item is obviously older than 70 years old, you should be fine to publish the image.
If you are not sure, take a risk-based approach. In most cases, the material held by community archives will not present a big risk, however you should still consider what to do if the copyright holder makes themselves known and objects. This is where a take-down policy comes in.
For example, you hold a collection of aerial photographs of unknown provenance, plus their negatives. You use the negatives to determine that they were taken in 1947, and so are around 74 years old. This means their copyright has expired and you are fine to display digital copies on your website.
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