Recently I was interested in bidding for an Ebay lot of over 10,000 slides that the seller, who was a house clearer, claimed to hold copyright for. His view was that when he clears a house all the property becomes his and the family want nothing more to do with any of it. So, logically it seemed that the copyright would have automatically transferred to him from the family.
The seller was willing to write a copyright transfer letter to me, and I was tempted to trust his word and anyway if I had a letter what could be so wrong? In reality, this was me trying to persuade myself and I wasn’t at all convinced.
So I wrote to the UK Intellectual Property Office telling them about the auction and they were super efficient and sent a reply in good time – so I was at least informed and didn’t make an expensive mistake ( the lot went for around £250 and I would have bid to win!).
It is a fairly definitive reply from the Copyright Enquiries section – and yes, don’t worry I asked permission from them as copyright owners before posting here! I hope that this helps inform others. One solution to this problem would be for house clearers to insert a clause in their contract covering copyright transfer, making sure that the family and solicitor understand what it is all about. That way a lot more images of our culture and social history would become available for publication rather than become lost as ‘Orphan Works’.
I sent them this email.
Hello at IPO,
I buy photographic slides on Ebay and always check that the seller owns copyright as, for example, being beneficiary in a will. I require a written copyright transfer note before I buy any slides so that I am not getting Orphan Works.
I want to ask about the position of a house clearer who is selling slides. He tells me that ownership and responsibility for all property comes to him when he takes on a contract to clear a house. ie) any valuable left behind is his. He claims that he can therefore write a copyright transfer because the family is not interested and has passed all responsibility and ownership to him.
Could you please let me know your reaction to this claim?
Thanks
Here is their reply:
Dear Ian,
Thank you for your query that was passed to the Copyright Enquiries service to provide a response.
Please be aware that the Copyright Enquiries service is only able to provide general advice regarding current UK copyright law and cannot provide legal advice regarding how the law should be interpreted in specific cases.
It is important to be aware that copyright exists separately from the physical item itself. This means that owning, for example, a manuscript does not necessarily mean ownership of any copyright which subsists in it, and it is possible for this copyright to be owned by a different person. This means that just because the person has the physical copies of the slides does not necessarily mean that he is the copyright holder of the slides.
Ordinarily, copyright will belong to the creator of the work unless there is evidence to the contrary, or the work is created by an employee in the normal course of his employment – in which case it would belong to the employer.
To be the copyright holder of the slides the seller must have had these rights assigned to him. Under section 90 of the of the Copyright, Designs and Patents Act 1988, a transfer of copyright is only effective if it is in writing signed by the assignor. With this in mind, it is probably worth asking the seller to provide the written proof that he is indeed the copyright holder of the slides; it is possible that this is contained within the contract he has agreed with the family.
If the seller owns the copyright in the slides then he would be free to assign these rights to you. You may find the following guidance on the transfer of copyright useful: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/379040/c-notice-201402.pdf
Ultimately who owns the copyright in the slides will depend on the agreement between the house clearer and the family. Copyright assignments are a type of contract so if you require any further assistance you may wish to seek legal advice. You should be able to find a lawyer with relevant expertise in your area using this link:
http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law
Finally, please note that copyright infringement is a matter of strict liability. This means that infringement does not require intent or knowledge of wrongdoing. If you use a work for a copyright-restricted purpose on the basis of a transfer of copyright ownership or a licence that turns out to be invalid (e.g. because the person who purports to transfer copyright ownership to you is not the owner), you can be liable for infringement. You should therefore satisfy yourself that any licence of transfer of ownership is valid before using a work for any copyright-restricted act.
We hope this response has been of some assistance.
Best regards,
Copyright Enquiries
Copyright permission
The response we sent you is covered by Crown copyright. You may use this under the Open Government Licence (OGL) providing you meet the conditions of the licence.
The full terms and conditions of the OGL can be viewed here:
http://www.nationalarchives.gov.uk/doc/open-government-licence/