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Almost all the original items in your collection, whether documents, plans or photographs, will be subject to copyright, as will much printed matter including books, manuals, publicity material and magazines, and audio visual recordings. Always bear in mind that copyright of an item belongs by default to the creator and their heirs (or to their employer if it was created in the course of business), and NOT to the current owner of that item. In many cases it will not be at all clear to whom the copyright actually belongs, and such items are known as “orphan works”. Multiple copyrights can exist in the same item, for instance individual contributors to a magazine, or the soundtrack, still images and film on a DVD.
In practice, this means that you cannot supply copies of items in your care without carefully considering the rights of the copyright owners and taking reasonable steps to obtain their consent; even more so if the copies are going to be published. If you publish images online, it is worth having a clear “Take Down” policy and procedure in case there is a complaint from someone who claims the copyright of a specific image.
As a general rule you should avoid making further copies of existing copies (photocopies, duplicated photographs, videos), unless their copyright status is absolutely clear. There are legal provisions for making “preservation copies”, though there are limitations on how these can be used.
When a new collection or item is added to your collection, you should discuss and record the copyright status of its contents. Where the donor/depositor created items, or they are the legal heir of the creator, they are able to assign copyright to your organisation. Copyright of other items in the collection, which they did not create, cannot be assigned. They may not wish to assign copyright ownership, in which case you will need to seek their permission every time you receive a request for a copy of a relevant item, unless you can arrange a blanket approval.
Copyright law is extremely complex, and the duration depends on a number of factors including if the creator is known, when they died, and it the item has previously been published. The above is only a brief introduction to some of the key issues. Please see https://www.nationalarchives.gov.uk/documents/information-management/copyright-related-rights.pdf for some useful advice on Copyright issues.
For a much more detailed discussion of how the law applies to archives, please see Copyright for Archivists and Records Managers by Tim Padfield (6th ed, 2019). This includes some useful flow charts to help you determine the duration of copyright in specific items.
Further guidance aimed at the cultural heritage sector, including a downloadable Copyright Agreement Template, has been produced by Naomi Korn Associates, see https://naomikorn.com/resources/ .
The General Data Protection Regulation (GDPR), and the Data Protection Act, 2018, strengthen previous Data Protection legislation in relation to personal information on living people contained in archives. There are exemptions relating to the retention and use of such material for archival and research purposes, particularly the “archiving in the public interest” exemption, which mean that paperwork and electronic files containing personal information do not have to be destroyed as a matter of course when no longer needed for their original purpose. However, there are responsibilities for those holding relevant records, and legal sanctions if you breach the Regulations. You can’t archive something in the public interest just because it might be of historical interest in the future – you will need to show that your organisation is capable of keeping the information appropriately in the long-term. If you are not a well-established archive you will need a commitment such as an appropriate mission statement, setting out your intentions and purpose moving forwards.
Please see https://www.nationalarchives.gov.uk/archives-sector/legislation/archives-data-protection-law-uk/overview/ for Archive-specific advice, and the Information Commissioner’s Office https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ for more generic advice.
Commercial confidentiality and Intellectual Property Rights
Even if you are not a Company archive, your collections may contain business records. Papers produced by a commercial entity such as an aircraft manufacturer can fall into several categories, including:
- Publicity and promotional material which was widely and publicly circulated, and should be freely available.
- Internal papers, which may be commercially sensitive. For instance, the private papers of an individual might include records created in the course of their employment by an aircraft manufacturer, which should never really have been removed from their office. These papers could contain commercially sensitive information or even restricted information. It will almost certainly remain the Intellectual Property of the employer. If in any doubt you should contact the relevant company or its successor for advice, as they may hold related records.
- Items shared in the course of business activities, such as sub-contracting, in which case you may need to consult several current companies for advice.
Restrictions and Closures
In some circumstances it is appropriate to “close” all or part of a collection for an agreed number of years, on the wishes of the depositors or donors. In most cases this will be because it contains sensitive personal information, which they or their family might not want to be placed in the public domain until the current generation is no longer with us.
You can still catalogue such collections, though you may need to consider how much detail is made publicly available at this stage, and that the act of cataloguing material brings it within the scope of Data Protection legislation. The mere knowledge that an item exists, even if it cannot currently be seen, may be enough information for some researchers. The relevant catalogue entries should clearly state that the items are closed, and for how long. It is also useful to clearly mark the relevant boxes so that affected items are not issued in error.
Some owners might ask for their collection to only be made available to certain individuals, or to have the right to vet potential users. Such restrictions on access run contrary to archival principles and should be avoided if possible, as they can be time-consuming to administer, and could cause awkwardness between researchers and those caring for the collection. There may occasionally be a case for short-term exceptions, such as an arrangement to allow an official biographer special access to personal papers.
There is no compulsion on a business archive to make the internal records of its parent company publicly available. Some such archives are set up purely to facilitate internal requirements, and others are consciously outward facing, while many cater to both internal staff and heritage interests. It is the company that makes this decision.
Liability and responsibilities
Some aircraft manufacturers will not allow copies of plans to be supplied for the purpose of restoring or re-creating a plane with the intention of it being flown. This is because of the legal liability for any accident arising, which could lie with the company. If you hold detailed plans of an aircraft or component thereof, please respect the wishes of the creating company, if they can be determined.
Depending on the nature and age of your collections, it is possible that some documents, particularly those relating to defence matters, could contain information that should not be in the public domain, and may fall under the provisions of the Official Secrets Act, 1989. Official documents could be marked as “Protect”, “Restricted”, “Confidential”, “Secret” or “Top Secret”, in increasing order of sensitivity. The categories of “Protect”, “Restricted” and “Confidential” have not been used since 2013.
Board Minutes, together with supporting documents such as correspondence files and contracts, can include information of a sensitive, political or security related nature, even if not explicitly marked, and were never intended for public perusal.
However old the documents are, think carefully before issuing such items to a researcher, and seek external advice if there is a possibility that they may contain information that is still sensitive. If they are still sensitive, you will need to consider whether they should actually be transferred to another, more suitable, repository.
This guidance links to Section 3.3 (Access Information, Procedures and Activities) of the Archive Service Accreditation Standard.
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