Copyright and Reproduction Permissions

Please note: This document is provided for information to those who may be seeking to reproduce items from the Journal of the Cork Historical & Archaeological Society. It should be further noted that proper legal advice should be sought when reproducing any material for any source including digital material.

In order to help with the research process this information is provided, but appropriate legal advice and opinion should be sought and it is advisable to do so in case of doubt. Readers who are unsure as to how to proceed should seek legal opinion and advice. The Cork Historical & Archaeological Society (CHAS) does not take responsibility for any failure by others to seek appropriate permissions.

Material in the Journal of the Cork Historical & Archaeological Society is copyright of the Society and its author (including cartographer, photographer or any creator).

Period of Copyright

Copyright in Ireland is governed by the Copyright & Related Rights Act, 2000: see ‘More information on Copyright’ [link accessed 5/2/2018].

The period of copyright extends to 70 years from January 1st following a person’s death. For example, the copyright on James Joyce’s works expired on 1 January 2012: this is 70 years after his death on 13 January 1941. The January 1st date is useful if the particular day of death is not known but the year is. Thus, the first task is to find out when the creator died. Then calculate how many years ago that was and then decide what to do.

If the item is still in copyright, then permission to reproduce must be sought. CHAS does not retain any information about authors or other creators, so please do not contact the Society. Some information was created as part of the Digital JCHAS project: JCHAS authors page. This information should be checked, particularly if required for copyright or other serious reason. The Society, members of Council nor the creator of this list is liable for the uses to which the information presented here may be put.

If it is not possible after research to find out any information about the creator of the material, contact should be made with the family or literary executor. It is the responsibility of the seeker to get permission (here called ‘the user’) to reproduce and follow correct legal procedure.

If it is not obvious who the creator of the material is, then it may be what is known as an ‘orphan work’. There are also rules with regard to these, the most important of which that a user has made reasonable effort to track down the creator. It is vital that when searching for the owner of copyright records are kept about that search so that it can be shown that a prospective user searched diligently and honestly for the copyright owner. A non-response cannot be assumed to authorise use of material.

The tips and other information supplied below are for users’ information only and are not to be relied upon in any legal sense. It is the user’s responsibility to seek legal advice in this matter.

Good faith

A prospective user must fulfil some core requirements including but not exclusively:

  • Users of orphan works must show that they have made a reasonably diligent good faith search for the copyright owner;
  • The use must make clear and adequate attribution to the original work, author, publisher, and copyright holder, if possible and as appropriate under the circumstances; and
  • If a copyright owner is subsequently identified, the user must pay a reasonable royalty and not re-use the work unless agreed with the copyright holder.

Note: it is not sufficient to use a disclaimer – serious effort must be made and proven, if requested, to find the copyright holder and to ask for permission.

 

Some Tips for Seeking Reproduction Permission

Some information is provided here to help in finding copyright holders. This information is provided in good faith but as stated previously appropriate legal advice and opinion should be sought and it is advisable to do so in case of doubt. Readers who are unsure as to how to proceed should seek legal opinion and advice. The Cork Historical & Archaeological Society does not take responsibility for any failure by others to seek appropriate permissions.

Typical steps in getting reproduction permission

  • Find the name of the author/ photographer/ publisher / other rights holder – all of these may have to be contacted depending on the situation;
  • Research the details – whether the ‘real’ person (e.g. author or photographer) is still alive and, if not, the date of death – if the author has died within the previous 70 years, then the heir or estate will need to be contacted; whether the publisher’s rights have passed to another party (e.g. another publisher) – the publisher may be corporate rather than a real person (in which case the copyright may not have expired);
  • Contact the rights holder for permission to reproduce.

From whom do I need permission?

Permission must be obtained from the rights holder of the material. Often contacting the publisher of the material may lead to the contact details of the copyright holder. However, in many instances the publisher may not have current contact details. With the passage of decades discovering the whereabouts of an rights holder becomes more difficult. Finding a rights holder may require extensive research. A researcher should be prepared to decide not to reproduce copyright material in the event that a rights holder cannot be found.

Some sources that may be useful in finding contact details of rights holders:

Other useful sources of information about ‘real’ people include the Dictionary of National Biography, Dictionary of Irish Biography, Who’s Who, logainm.ie, Strickland’s Dictionary of Irish Artists, etc. For information only, a list of some JCHAS authors is available online. If the creator has published books, have a look at a book’s copyright page and see what name is printed (bear in mind that sometimes this may be a company, which may change the copyright expiration date).

How do I obtain permission to use photographs or illustrations?

Photographs or illustrations of fine art objects (sculptures, paintings, etc.) can also be subject to copyright, and permission may need to be obtained from the holder of the reproduction rights in the photograph (usually the photographer, the publisher, or the owner of the object (e.g., a person or company, or a gallery or museum or library)). Researchers should be warned that reproduction permission may need to be obtained from both the rights holder of the art object itself (if still protected by copyright) as well as the photographer of the art object.

Sources that may be useful here in finding contact details of rights holders include some bodies that represent the intellectual property rights of many well-known artists:

More information is available at website of their umbrella organization, CISAC.

Keep records

As with searching for any rights holder, every effort must be made to do so. Records should be kept of all correspondence as proof of attempts to obtain permission (e.g. printouts of emails, registered letters, etc.). A non-response cannot be assumed to authorise use of material.

 

Some Frequently Asked Questions

Do I need to obtain permission to use material posted on a website?

More than likely, yes. Most material on the Internet is protected by copyright. If no copyright notice is displayed it should be assumed that copyright is held by someone. Not all material posted on websites may be original to that particular website. In this case you will need to be request reproduction permission from the rights holder of the original source, once the rights holder can be identified. In the case of material that is original to the website, permission should be obtained directly from the website owner (assuming that they own the copyright to the content on their site). Never assume that material is ‘out of copyright’ or is not ‘owned’ by someone.

 Sometimes material on a website is marked as covered by a Creative Commons licence (CC licensing) (example of logo, left). Licences relating to such material should be read carefully as not all of these grant the same permissions to reproduce. More information is available at https://creativecommons.org/.

What should I do if I am not able to locate the copyright owner?

As stated previously, where rights have descended to heirs or transferred to another publisher, it may be difficult to locate the correct rights holder. However, every effort must be made to do so. Records should be kept of all correspondence as proof of attempts to obtain permission (e.g. printouts of emails, registered letters, etc.). A non-response cannot be assumed to authorise use of material. Remember: copyright is a property right; it is better to err on the cautious side and not reproduce material if the rights holder cannot be found or if permission has not been received.

Works for which a prospective user is unable to identify, locate, and contact the copyright owner to obtain permission (as distinct from cases in which an identified rights holder simply does not respond to a request) are known as ‘orphan works’: read more about this here  – this is a UK website but it is helpful to explain issues relating to copyright. In the EU, orphan works are covered by Directive 2012/28/EU (the European Orphan Works Directive).

Some publishers have signed what are called ‘Safe Harbor provisions’. This document can be usefully read for guidelines.

Do I need to adhere to the conditions of permission?

Yes. If the rights holder requires that the credit line be in a specific format, this must be followed exactly. The CHAS requests that for items, for which rights holder permission has been received, a suitable acknowledgement to the source should be made, either in a foot/endnote or in a reference list at the end of your publication, as follows:

“Reprinted from Journal of the Cork Historical & Archaeological Society, Vol number, Author(s), Title of article, Pages No., Copyright (Year), with permission from [COPYRIGHT OWNER].”

What about digitised works?

Note: This article is a summary for information only and should not be relied upon without proper legal opinion. The Cork Historical & Archaeological Society takes no responsibility for the actions of readers of this document.

It cannot be assumed that if an original work (not in digital form) is out of copyright, then it follows that so would its digital counterpart also be. The creation of a digital file creates a new item that may also have a new copyright: again, do not assume that permission will not be required. There are different scenarios depending on how digitisation occurs.

  • Fully automated digitisation: This type of digitisation typically does not involve creative choices. In general under Irish law, as the general legal situation under EU law states, texts, objects and images protected by copyright and in the public domain after digitisation are not protected.
  • Semi-automated digitisation: This includes digitisation that is realised by human operators (such as a person taking pictures or manually photocopying collections for inventory or classificatory purposes) which can be applied to texts, images and objects. Generally, this type of digitisation takes place without creative choices of the person. Some technical skills may be present. Under Irish law, as the general legal situation under EU law states, a digitisation with minimal human intervention is seen as a reproduction of the underlying work. This means that the digitisation cannot be separately protected by copyright after digitisation. An original that is copyright-protected leads to a reproduction that is protected for the same term as the original.
  • Human-operated digitisation: Digitisation operated by a person with the objective to realise high quality output. This is applied mostly, but not only, to create digital images of three-dimensional objects. During several decisive moments of the process creative choices can be made (e.g., in preparation of the object, the light, angle, staging, and exposure, and in the editing in the post-production phase). Works that have been digitised are protected under EU and Irish law. As the general legal situation under EU law states, copyright protectedworks are protected as a derivative work after digitisation. Works in the public domain are protected as an independent work after digitisation.

Photocopying: Can I obtain permission from a Reproduction Rights Organization (RRO)?

An RRO is a national organization licenced to handle certain types of permissions on behalf of publishers or other rights owners. RROs can provide you with permission in the form of a licence to make copies of material in several formats such as printing, photocopying, scanning, digital copying, and electronic storage. For more information, see the International Federation of Reproduction Rights Organisations.

If it is wanted to make multiple photocopies of articles or chapters, for Ireland contact the Irish Copyright Licensing Association for a licence subscription. ICLA is the national licenced organisation for Ireland. If a user is making photocopies at a library, then that institution will already be licenced by the ICLA.

The Irish Visual Artists Rights Organisation (IVARO) pays photocopying royalties to artists whose images have been reproduced in Irish publications. See the information about the licencing process.

I’m concerned about my own copyright – what action can I take?

It is possible to register as an author or publisher with a Reproduction Rights Organization (RRO). In Ireland the body that is licenced to do so is the Irish Copyright Licensing Association. The ICLA makes “fair payment for any copying” to registered rights holders.

 

Further Sources of Information

This is a select list of sources of information and does not claim to be complete.

Robert Clark and Máire Ní Shúilleabháin. Intellectual Property Law in Ireland. Kluwer Law International, 2010. Includes copyright, design law, database right, etc.

Thomas Margoni. The digitisation of cultural heritage: originality, derivative works and (non) original photographs. Institute for Information Law (IViR) – Faculty of Law, University of Amsterdam [2014].
Full report [link accessed 5/2/2018]
Executive summary [link accessed 5/2/2018]

Irish sources

Copyright Association of Ireland, a non-profit company
Irish Copyright Licensing Agency, the national licenced organisation for Ireland
Electronic Irish Statute Book

EU Sources

Out of Copyright: determining the copyright status of works (original and digital) [link accessed 5/2/2018]
EU: Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works [link accessed 5/2/2018]

UK Sources

As a common law jurisdiction, it is useful to look at websites etc. but remember that after Brexit in 2019, UK law will change as it will no longer be a member of the EU.
CopyrightUser, this is UK website but it is helpful to explain issues relating to copyright [link accessed 5/2/2018]
UK Intellectual Property Office [link accessed 21/2/2018]
UK: Orphan Works guidance [link accessed 5/2/2018]

USA Sources

For information about USA copyright and to determine if a work is in the public domain, according to US law.
US Copyright Office: Orphan Works [link accessed 5/2/2018]
Cornell Copyright Information Center, Copyright Term and the Public Domain in the United States [link accessed 5/2/2018]

This article is copyright © CHAS 2018