For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Sunday, 23 March 2014

Why can't you take pictures inside the British Library (Reading Rooms)?

... Or any other library, museum, exhibition space, etc, that displays the familiar "No photos (please)" sign?

The question has arisen earlier this week over a Twitter row [are they becoming more frequent than off-line rows?] over publication on Twitter of a picture taken inside one of the British Library (or 'BL') reading rooms.


The story is told by Business 2 Community and runs as follows. 


Financial Times columnist John Gapper happened to be at the BL on 21 March last, and thought of giving the world [or, rather, his Twitter followers] evidence of this by tweeting a picture right from the Humanities Reading Room [also this Kat spent some exciting time there and especially at the BL's Peyton & Byrne last summer consulting some copyright law materials]


Shortly after this happened, the ever-efficient BL Reference Service tweeted back at Mr Gapper, requesting he immediately deleted his tweet. The reasons? Breach of copyright and data protection laws. 



The infamous Twitter picture
As regards the latter, Mr Gapper had photographed BL users without obtaining their permission first. 

As regards copyright, the BL Reference Service claimed that the picture [yes, look at it again] was likely infringing copyright in the collection items [?], and that "Copying all of a book in copyright is against the law" [fair enough, but how did this relate to Mr Gapper's case?].


Following this Twitter row, yesterday the BL released a statement in which it conceded that "[t]he photo itself was not in breach of copyright regulations", and apologised for earlier inaccurate information. 


However, the BL confirmed that "Under the terms of the British Library’s reading room regulations, mobile phone cameras, and any other camera device, may not be used within the Reading Rooms at any time, for reasons of privacy and for the consideration of other readers working in the space."


Among other things, these terms state that:


  • Cameras and scanners must not be brought into the Reading Rooms. Likewise, mobile phone cameras must not be used within the Reading Rooms [but perhaps you can use your iPad camera, since iPads cannot make phone calls?].
  • The principles of the Data Protection Act, 1998 may apply to the use of any information relating to living individuals which is obtained from our unpublished collections [so not from the mere fact that there is someone who is reading something in one of the Reading Rooms?]. Current UK data protection must therefore be complied with. 
Gigi is not at the BL,
but does she have
a reasonable expectation of privacy? 
By looking at the BL terms of use, it would seem that in the case of Mr Gapper, it was not a matter of copyright infringement, as it was not a breach of data protection rules. 

But could it be Article 8 ECHR material? To succeed in a claim for breach of personal privacy, it would be first necessary to establish that the subjects portrayed in the BL Reading Rooms have a 'reasonable expectation of privacy'. 

As the Court of Appeal of England and Wales stated in Murray v Big Pictures [here], this is "an objective question", "which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."

If BL Reading Rooms visitors have such an expectation [but do they? Perhaps they do, since they have read the BL terms of use and committed to spend time there exclusively not to have any pictures of them taken while engaged in saucy and highly-interesting activities such as reading the same page book for 4 hours], then the question becomes whether a reasonable person in the same position "would regard publication as either offensive or highly offensive." 

" ... And then the evil Copyright Monster
will come and hurt you mercilessly
if you take (and tweet) any pictures
"
The Court of Appeal told us that it all depends on the circumstances of the specific case, so we don't know (yet) ...

However, it seems to that all this BL fuss is just about breach of BL terms of use, rather than issues of copyright, data protection and privacy. 

Merpel wonders whether references to the latter [in particular copyright] are sometimes used mainly - if not solely - to scare people off, with the result that even copyright is perceived by the general public as a monster, rather than the pretty creature that it is in reality ...

But what do readers think?

18 comments:

Anonymous said...

Within the reading rooms I would say that the BL have it right. No one wants to be photographed while working without their consent. He could easily have taken a pic in the public areas.

Anonymous said...

Is the reading room of a public library a public place or a private place?

Eleonora Rosati said...

@Anonymous at 14:45: According to the BL, "As everyone in a reading room has to have a pass, it's not the same as a public area".

To apply for a BL reader pass, you must agree to BL terms of use: http://www.bl.uk/reshelp/inrrooms/stp/register/stpregister.html

Kingsley said...

Eleonora, interesting. The first line reminds me of my short stint at the Museum of Brands www.museumofbrands.com. If you find time, do check out this little hidden gem and perhaps, publish a part 2 of this post with your thoughts on copyright vs contract for photo restriction in museums.

Like me, you might (to start off with) come away pondering: artistic craftsmanship, public domain exception?

Anyway, the Courts have the last word :-)

David Bryson said...

The act of "Taking photographs" has become more and more hemmed in by restrictions both for amateurs about more for professionals. For example like the British Library the National Trust doesn't allow photography except for personal use but on the opposite side if you want to take photographs as a professional and submit to National Trust Library so they n you can make money they are not accepting any more photographers.

Most shopping centres, all football clubs, and rightly Hospitals and many other places and organisations place restrictions on everyone. This automatically occurs when you agree to enter their facilities. If you then do something in breach of those often hidden rules then you are de facto a trespasser. So if you try to use a camera you can be ejected from an area/building.

This issue currently affects professional photographers more often but with the rise in number of images taken by other devices anyone who takes photographs will find themselves in difficulties. The caveat of paying for a photographic licence often in some museums £1 or so is mainly for non-professional so photographers are less likely to be able to make an income from their profession at the same time as our copyrights are being eroded.

This is something professionals have been living with for years so interesting to see average person in street caught out!

Anonymous said...

Eleonora,

Does this have any impact to the public/private nature?

The Freedom of Information Act

The Freedom of Information Act 2000 gives a general right of access to recorded information held by public authorities and obliges them to disclose information, subject to a range of exemptions.

Ron said...

There certainly seems to be a certain amount of misapprehension by organisations such as museums as to the rights that they may or may not have in documents and photographs that they may have in their possession.

For example, I have a book on railways where the acknowledgements page states that copyright belongs to the Science Museum in respect of a reproduction of a poster announcing the opening of the Liverpool and Manchester Railway dated 1831, and the Illustrated Londion News in respect of a woodcut illustration of the Tay Bridge disaster. Presumably there was a licence to reproduce the respective illustrations held by the respective organisations, but my understanding is that any copyright in such illustrations has long expired, and would not be revived by the act of making a straighforward reproduction of the originals by means of a photographic process.

The IPO has recently issued a useful information notice

http://www.ipo.gov.uk/c-notice-201401.pdf

that explicitly mentions this. However, it is hidden away on page 2 in the section headed "What if there is more than one copyright owner?"

Andy J said...

As many keen photographers will know, having no photography as a condition of entry applies to a wide range of places, including most National Trust properties, venues which stage live music events and privately owned shopping malls (ie most of them). If you are engaged in anything except the most trivial 'amateur' snapping you need a licence to take photographs in the Royal Parks in London. And don't forget the courts and the Houses of Parliament. I'd say the BL was in good company.

Anonymous said...

Surely, the question to be asked is why would anyone want to take a picture in the library and tweet it? Can people who love themselves not understand that the whole world would be better off if they kept their uninteresting activities to themselves?

Anonymous said...

Is this strictly a British thing? If so, how does this jibe with protection under Berne (and importantly when that protection lapses and as noted by Ron, no true copyright remains?

I know that in the States, a vibrant First Amendment (and to lesser extent, the Freedom of Information Act) guard against the not-so-legal lockdown of the public's legal right to those items that have run the course of copyright protection.

Does not this sentiment carry through in the Berne convention?

Anonymous said...

I have the distinct impression that most museums that prohibit photography do so because they think that by keeping me from taking a picture they make it more likely that I will buy a postcard or book from their gift shop. That, more than anything else, seems to be the motivation. Fortunately, many museums and galleries follow more enlightened policies.

Eleonora Rosati said...

Thanks everybody for your comments.

@Anonymous on 23 March 2014 16:28:00 GMT: The BL is a public authority within the Freedom of Information Act but are spaces or content included in photographs taken by library users information that it holds?

@Kinglsey and Ron: There might certainly be instances when photographs taken include copyright-protected content and so there might be copyright issues. But not everything is about copyright (and you might guess how hard it is for me to admit it!).

Asserting non-existent rights over content is another problem. For instance: if you look at the websites of cultural institutions, you will see that simple digital reproductions of collections invariably come with the (c) symbol. Is there copyright in those images? After CJEU's Painer decision, I doubt it ... I guess these are remains of the old UK originality standard but perhaps are no longer compatible with EU law.

Anonymous said...

Eleonora,

The incompatibility is not a British thing alone. In the States, it is a very serious issue. For example, it shows up in the 'breaking' or cracking aspect in cell phone preventive access measures.

Here in the States (perhaps due to our strong First Amendment notions, perhaps not), the need to protect the capability of someone to engage in Fair Use is in constant battle with those who want to prevent copying of any kind - Fair or otherwise. The problem of course is exacerbated with digital goods given the fact of ease of copying and quality of the copy.

I remember growing up in an era of magnetic tape. If I liked a song on the radio, it was Fair Use for me to tape that song off of the radio using my cassette recorder for my personal use. No one really cared given the lower quality of the recording. In today's world, this Fair Use example is very much cared about. We see the copyright holder (or their privy) going to great lengths to prevent what was yesterday Fair Use. Even to the extent that copies 'over the web' are not being considered 'copies' and that 'licenses' are substituted for what are in actuality 'sales.'

I would stress that this is also obfuscated in the legal arena as some type of "law is not keeping up to date," when in actuality, the law is technology-neutral and it is the business models that are not keeping up to date. It is the business models pushing the law to change to protect the old business models - the tail is wagging the dog (or cat, as it were).

Anonymous said...

Dr Rosati: This is why automated copyright clearing and enforcement systems cannot work - the subsistence and ownership of copyright is overwhelmingly a substantive rather than formal question, and the (c) marking no more than a claim to any rights which may subsist. This is often why "real property" analogies break down, and also why I gnash my teeth in frustation at so-called digital media experts who discuss the detection and filtering of "copyrighted content".

Anonymous said...

Obviously I will fight for copyrights on behalf of rights owners professionally, but privately I will fight the ever increasing proliferation of asserted rights by working for changing the laws. On a personal level I get increasingly saddened by the narrowminded copyright regimes that are run by public collections. It seems that irrespective of whether it is 2D or 3D art or contents of books the “patrons” are not permitted to take photographs. In a modern world where we know that light has a very detrimental influence on the durability of artefacts it would be perfectly understandable that flash photography is forbidden – that is a logical way to preserve the items. But modern digital cameras are very sensitive, and they even correct inadvertent movements during long exposures. Yet the collections maintain a copyright that should not be theirs. According to some (most?) copyright laws, anybody is permitted to make one copy of a published item strictly for personal use, and such use does not include a right of distribution. But in libraries we are increasingly forced to use pencil and paper and copy text out in longhand (or manually type into silent computers), i.e. potentially going back 150 years in accessibility. It may be that the public institution has farmed out all photography of their items and has assigned all copyrights, but that is wrong when it is a public collection.

At the same time, academic publishing houses no longer have departments to clear copyrights; that burden is placed on the author. So, less assistance with more rights. A few years back I had a correspondence with the Smithsonian Institution because I wanted to publish one of the images from a digitally accessible historic scientific instrument manufacturer catalogue. So far, so good, that was permitted. But I wanted to provide it with lines of my own and text identifying individual technical details -- here permission was only given after I stated that I would put our correspondence in a footnote and publish two separate images, the permitted one and my added material. I have also published papers in which I state “Fig. 1 not shown for copyright reasons”. In works on the history of technology I now exclusively use either my own images or patent drawings with the reference numbers and lines removed. And I shall obviously avoid red London buses. This is intolerable!

Hence, not only are we hampered in our efforts to publish, we are also hampered in our efforts to collect information by modern means.

Best wishes,



George Brock-Nannestad

Ron said...

Whereas UK Patent law has specific statutory provision for unauthorised claims to rights in patents or patent applications (PA 1977, Ss. 110,111), there are no such provisions regarding claims to copyright.

Whereas the existence of enforceable rights in patents and patent applications can be determined by inspecting the official register, determining the existence of copyright in a work is not so straightforward, hence the perceived need for addressing "orphan works".

I wonder how many asserters of copyright in works of which they were not the author could produce a paper trail of written assignments from the author as per S.90 (3), CDPA1988?

Anonymous said...

Excellent point Ron.

And here in the States, one reason for the furor of lockdown techniques is that not only can there be questions as to actual material being locked down as having legitimate copyrights, but that even material having legitimate copyright protection still also has traditional 'public' uses protected under law - and that the lockdown features (and the laws criminalizing the attempts to defeat the features) prevent more than what the rightsholders can protect under law. Eliminating ALL undesired use, even that use which is protected under Fair Use doctrines.

xxxxxxxx said...

I imagine that the main reason for the British Library wishing to prevent the use of cameras and scanners is to prevent infringement in the copyright in the collections. This is of particular significance in view of the narrowing of the "fair dealing" exemptions in recent years and to the fact that the contracts under which digital materials are supplied often severely restrict, if not effectively prevent, the making of copies.

Those posting who are of an academic background, should perhaps reflect for a moment that commercial users of the British Library have to pay a licence fee for making of copies.

There is also the fact that in crowded museums, camera users can be a pain in the proverbial causing obstruction to gangways while they line up their shots.

...and finally, yes, in a library I would have an expectation of privacy. I cannot see any legitimate reason for taking a photograph of me working in a library, nor is there any obvious reason to use a library for the purpose of taking photographs.

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