NZ copyright status flowchart (photographs) - tell us what you think!
UPDATED 7 April 2009: Thanks for all the wonderful feedback, and time taken to review. We have updated the flowchart based on your comments.
Download the updated flowchart for determining the NZ copyright status of photographs (NZ copyright flowchart in RTF, 324 KB) (NZ copyright flowchart in PDF, 62 KB)
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DigitalNZ is proud to make available the first version of a tool for determining the New Zealand copyright status of photographs for you to use and comment on.
Download the flowchart for determining the NZ copyright status of photographs (RTF, 149 KB) (PDF, 120 KB)
One of the problems we find that our content providers face is determining the copyright status of items. If you can’t determine the copyright status of your content, you can’t even start to think about applying New Zealand Creative Commons licences or other statements.
The tool we’ve developed is intended to meet ‘80%’ or thereabouts of situations, rather than trying to provide a decision tree for every possible scenario (e.g. rights of joint photographers). These are things you need to take note of though.
We think it will be useful to you if you are:
Breaking it down by format is a great way to tackle some of the complexity in this area, so we've begun with photographs to prove the concept. If this one proves useful, we’ll extend this into a series.
Yes, and then some. We’ve worked with a number of experts and lawyers to ensure that this flowchart is a useful tool for determining the copyright status of photographs.
That said, this flowchart is of a generalised nature, for information only. As the disclaimer states, it doesn’t constitute professional advice and DigitalNZ is not responsible for any loss caused as a result of using it. You should seek professional advice from a suitably qualified professional about specific issues. Don't let that put you off using it though!
Please take a look at the flowchart, try it out, show it to other people, and let us know what you think. Anything you’d like more discussion on, just let us know in the comments.
We’d also be interested to know whether anyone out there has similar tools hiding in their back rooms? We’re happy to publish them here if you’d like to share – though we can’t verify their usefulness like we have for this one.
This isn’t the end for us. We’ve got plans! From making it look nice (OK, a bit of a nice to have), through to making it an online interactive.
But for now we just want you to know we’ve taken the unglamorous approach, and can’t wait to hear from you. So, what do you reckon?
Download the flowchart for determining the NZ copyright status of photographs (RTF, 149 KB) (PDF, 120 KB)
Information about copyright - Ministry of Economic Development website
New Zealand Copyright Act 1994
10 comments | Post a comment Leave a comment
Posted by Victoria Leachman | 10 Mar 2009 02:07
The omission of photographs from the transitional arrangements of the 1994 Copyright Act has caused a lot of difficulty for me as I determine copyright duration for photographs in Te Papa's collection. Te Papa has taken a conservative approach to this issue and has a standard duration of death of the photographer + 50 years even if the photograph was taken prior to 1 January 1944. However if I can't trace the photographer or their estate the works are declared as orphaned works and are uploaded into Te Papa's Collections Online in the hope that the copyright owner might come forward. I put a lot of time and energy into my search for copyright owners which I record so I can use it as a defense if necessary. Te Papa also has a take down procedure so if there is an objection the image is removed from Collections Online until negotiations to resolve the issue are completed. To date we haven't had one issue with copyright in the photographs we've put online. But I'm prepared if we do get one...
Posted by Hamish MacEwan | 10 Mar 2009 09:53
Wow!
It certainly illustrates the challenges that await ISPs (as defined by the Act) in judging infringement under Section 92A.
I'm curious to what extent the subject of the photograph affects its copyright status. For instance with the new transmission right, would a photograph of a TV showing an episode of "The Simpsons" ever be other than a copyright infringement?
Posted by David Reeves | 10 Mar 2009 11:59
Good work. The flow chart is a helpful graphical representation of what is for many a confusing issue. Additions or modifications to consider:
1. The chart will have to be clearly dated 2009, or modify the references to 1 Jan 1959 to "fifty years before 1 Jan this year" otherwise the chart will drift out of date.
2. although it is titled "NZ copyright" flowchart it would be useful to provide some direction (or exclusion) for photographs taken overseas, or taken by foreign-domiciled phtotgraphers, or where distribution(making digital copies available) will occur overseas, as to the applicability of longer copyright periods in Europe, Australia and the US. You may not want to go there, but people will ask!
3. Just for consistency and clarity, the Yes and No options need to be represented the same way throughout the chart
David
Posted by John Sullivan | 10 Mar 2009 15:01
This is great. Well done. I have one question.
I may know the identity of a photographer, and that he/she died after 1 Jan 1959, but still not know who the estate holder or beneficiary is. This is especially the case with single people without descendants or known relatives. Cases in point are the architectural photographer Duncan Winder and the Auckland photographer Bert Snowden, whose photos appear often in collections.
There may be a case for adding another loop, as follows:
Do you know who the estate holder or beneficiary is? Yes - consider approaching for permission to copy. No - Consider using a "copyright holder unknown, publish at own risk" statement.
Posted by Lewis Brown | 12 Mar 2009 14:31
@ Victoria: Under the 1962 Act copyright in photos was 50 years from creation. The new terms of 1994 Act only applied to works in which copyright existed immediately before commencement on 1 January 1995. Any photos more than 50 years old at that date remain out of copyright. On legal advice, we've also been conservative by giving a clear calendar year's gap, hence the use of 1 January 1944 as the cut off.
@ Hamish: Section 86 of the 1994 Act that permitted photos of television broadcasts has been repealed, so it now falls under the general restrictions on copying a communication work. You can of course copy for purposes of fair dealing, research, criticism, review etc, so such a photo may still be a permitted use in these cases, as would incidental copying. Just don't try printing and selling it on a t-shirt.
Posted by Virginia | 13 Mar 2009 10:37
Just a wee note to say thank you to all who have taken the time to review this tool and provide feedback (here, or offline).
We'll keep it open for discussion for a while longer and then post a new version. Meanwhile, keep the comments and thoughts coming!
Posted by Virginia | 13 Mar 2009 14:50
And another wee note to say we've updated the PDF - no content changes, just a better quality for printing out.
If you get an error message, try refreshing your browser. Apols if you've bookmarked already - the link has changed :-(
Posted by Elizabeth Noffke | 12 Apr 2011 09:08
I have been writing a book soon to publish on my late father who was a very prominent NZ singer from the 1940s, he died in 1995.
The studio photographers who took photos of productions he was in are all dead except for one that I can trace, but their photos are locked into copyright for fify years after the photographer died. Example if a photo taken in 1957 by a photographer who died in 1975 the photos are not available for publication until 2025. Searching probate /wills is expensive and time consuming. Fifty years is unreasonable. I am told a patent only lasts for fifteen years. Much NZ history will be lost beacuse of the law. Fifty years is a very long time and people like myself will be long past writing books and including photos of which he was famous for.
I am writing to request a review of the 50 year law, it is very restrictive.
Posted by Elizabeth Noffke | 12 Apr 2011 10:16
My comment had wrong email address please see new one.
Posted by Lewis Brown | 10 May 2011 13:53
Hi Elizabeth -
My apologies that we didn't pick your comment up earlier, as it appears on a very old blog post. DigitalNZ is not involved in reviewing NZ copyright law, which is the responsibility of the Ministry of Economic Development. They have contact details on the following web page http://www.med.govt.nz/templates/Page____7290.aspx or you can write to the Minister of Commerce, Parliament Buildings, Wellington. You may also be interested on our Make it Digital guides, which have a guide on use and re-use, http://makeit.digitalnz.org/guidelines/enabling-use-reuse/