Article Story: THROUGH THE DIGITAL JUNGLE - COPYRIGHT IN DIGITISED PHOTOGRAPHS

Date: 17/12/1996

New methods of copying photographs such as digitisation are raising interesting questions about ownership. Many of these questions have never been adjudicated by the Courts, but the issues are becoming more important as the means of distribution become more varied.

A photograph is like a painting. You compose your subject and take a picture. That picture is the result of chemical reactions on a piece of film (digital photography aside). The film can be seen as an original work, like a painting, all reproductions of which are imperfect copies.

A photograph is also like a musical score. A printer reproducing an image from a negative can interpret it in the same way that a musician can interpret a piece of music. A good printer can bring out elements in the original which even its creator may not have seen. The way in which a photograph is printed can dramatically affect its impact.

Whose copyright is that?

Although printers rarely claim copyright in their interpretations of photographers' works, there are situations where the question of copyright ownership becomes relevant in relation to prints. Generally this will involve prints of photographs which are out of copyright. The 1988 Copyright Act was amended on 1 January 1996 so as to give copyright protection to photographs for 70 years after the author's death. A vast amount of pre-1945 photography has come back into copyright as a result, but that still leaves millions of photographic images in the public domain, many of them commercially exploitable.

A glass plate cannot be published. An old photograph has to be printed. The job of printing an old photograph can be difficult and expensive. What protection is there for the investment required in putting these images into circulation?

Copyright only protects 'original artistic works'. How far do you have to go in interpreting an old photograph before you can claim copyright in your own original work?

There are no cases on this subject, but some argue that you have to add quite a lot to an existing photograph before you can claim copyright in the result. The legal interpretation of 'originality' is not as stringent as its everyday meaning, but a printer interpreting a photograph may be unable to claim copyright any more easily than a musician interpreting a score.

'Originality', to a lawyer, doesn't imply that a photographer must have had some great new idea. To be original, it is often said that a work merely has to be the product of the author's own skill, labour and judgement.

The question of originality has always been relevant to printers of public domain photographs, but has been thrown into sharper focus by the digitisation of old photographs. A number of photo libraries are now scanning large amounts of archive material and creating reproductions in computer files. It has been suggested that digital scans of photographs are protected by a fresh copyright, independent of the copyright in the original photographs. Companies investing heavily in this type of activity argue that the product of their investment which may involve the exercise of skill, labour and judgement should be protected by copyright. Without such protection, libraries can only rely on contractual terms agreed directly with their clients and have no rights against third parties.

The difficulty with digital scans is that they are intended to be perfect copies. The process by which a negative or transparency is first scanned and then converted into digits is advanced and sophisticated, but hardly one in which the operator's aesthetic judgement is taxed. A digital scan, even more than a print from a negative, is an essentially technical process. Can the resulting digital copy truly be described as an 'original artistic work'? And is there sufficient skill and labour involved to create new copyright?

There is every chance that these issues will come before the Courts in coming years, as new technologies create a growing need for clear legal precedents. Some of our preconceptions about the nature of originality may be shaken, but basic concepts of copyright law have been in existence for a very long time and have coped in the past with any number of new technologies (including photography itself). The signs are that today's technologies will also be accommodated as existing legal structures meet the challenge.

This feature is based on an article by Charles Swan of The Simkins Partnership which first appeared in the British Journal of Photography.

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