A new copyright notice from the IPO clarifies status of photographs of original documents

The statement, issued at the end of November says ‘Simply creating a copy of an image won’t result in a new copyright in the new item.’

So are digitised copies of older images protected by copyright?

This is the question that is of particular importance to Free UK Genealogy. Here’s what the IPO has to say:

Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’.

Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

However, this doesn’t mean that every photograph of old records is free of copyright;

• the original record may be in copyright or,
• the photographer may have been only allowed to photograph it or,
• you may have only been allowed to view it after entering into a contract with the owner or custodian of the physical records.

Nevertheless, this statement is a very welcome development which will make access to historic records much easier.