images are marked ‘Public Domain’ and were digitised through a Wikimedia UK grant.[1] On Flickr Commons, images are labelled ‘no known copyright restrictions’. These UK GLAMs and others on Flickr have deleted assets previously uploaded to the Commons, as discussed in Section 3.5.
The Parliamentary Archives has an indemnification clause: “When you use a copy or the item in a way that infringes copyright, you agree to indemnify the Parliamentary Archives in respect of any damages or costs incurred by it in respect of that infringement.”[2] Under this policy, indemnification could potentially include costs incurred when enforcing the (alleged) copyright against the infringing user, such as staffing time and overheads.
Some terms are practically impossible to enforce, such as this one on Tate’s website: “All use of Tate images under Creative Commons is checked by Tate. Please email us about how you plan to use the work at [email address]. Thank you.”[3] Whether this is meant to be a condition of use, or a courtesy request, is unclear. However, Creative Commons licences are expressly designed to permit reuse without permission or communication between the rightsholder and user. The Horniman Museum forbids users to “frame or link to the website or any part of it without our express permission”.[4] Both terms convey a desire for communication with users and a general interest in knowing how content may be used, but they are presented under the umbrella of legal enforcement.
4.2.8. Moral rights and attribution
Moral rights are a red herring in the UK when dealing with public domain works: because moral rights expire alongside the copyright, they have ceased to exist. However, the attraction to claiming copyright in digital surrogates is that the right of attribution to the institution can be secured through the new copyright.[5]
Moral rights accompany copyright protection and provide authors with the right to be named (or not) as the author of a work when it is copied or communicated (i.e., the right of attribution, and to object to false attribution) and to control any treatment that may be derogatory or affect the author’s reputation (i.e., the right of integrity).[6] In the UK, the right of attribution does not arise unless it is asserted (e.g., in a contract or on website terms).[7] Attribution and integrity rights last for the term of copyright. But it is worth noting that UK employees retain moral rights even where the copyright is owned by their employer.[8] Moral rights can be waived, but they cannot be transferred. For our purposes, assuming a copyright is valid, the question is then who owns the moral rights in digital surrogates versus who can enforce them. GLAM employees and independent contractors who create digital media often waive moral rights or agree for the GLAM to be attributed as part of their contract. However, the GLAM will not receive the rights to enforce the moral rights as part of this bargain.
Details around moral rights can get technical and complicated. To aid this, Creative Commons has translated the essential elements of the right of attribution to licences for BY (Attribution) and the
- ↑ https://commons.wikimedia.org/wiki/Category:War_art_in_The_National_Archives_(United_Kingdom)
- ↑ Publishing images, 41. Parliamentary Archives (All rights reserved)
- ↑ Creative Commons licences and Tate, 55. Tate (Closed licences)
- ↑ Terms and Conditions, 20. Horniman Museum (All rights reserved)
- ↑ See Section 2.
- ↑ CDPA 1988, ch. IV, ss. 77-89
- ↑ CDPA 1988, s. 79(6)
- ↑ CDPA 1988, ss. 11(2), 79(3) and 82
