But that's exactly what's happening as long as all the focus is on U.S. laws. Fair use won't protect you if you're publishing Wikipedia derived content in Denmark. Nor will Bridgeman v. Corel.

Recently a picture of the Lindisfarne Gospels taken from the British Library website became a featured picture even though the BL explicitly claims copyright on it and that claim may well hold up in a British court.

There are two critical facts that people seem to be missing in this debate. Firstly people moan about things that old having a copyright. My answer to that is, unfortunately, TOUGH! British copyright law is NOT just life of the author plus 70 years. That is the rule for PUBLISHED photographs and works. UNPUBLISHED works have an entirely different set of rules. If the author of an unpublished work died more recently than 1968, then the copyright term of published and unpublished works by that author are exactly the same. For unpublished works of those authors who died before 1969 then the rule is that there is a period of 50 years from the time of first publishing, or 2040, whichever is earlier, for copyright to expire.

To take the example of William Shakespare:

1. His published works were out of copyright before the concept even existed. 2. His unpublished works REMAIN IN COPYRIGHT TO THIS DAY. 3. Works published posthumously, and after the invention of copyright, expired as appropriate to the laws of the day. A Shakespeare work first published in 1954 would only have come out of copyright six months ago in the UK.

The second factor that people are missing is that US law on fair use is irrelevant to this discussion when it comes to images on the British Library server. That server is physically located in the United Kingdom. It is therefore governed by the copyright law of the United Kingdom. Anyone accessing it from the UK is only governed by British copyright law. Anyone accessing it from another country is covered both by British copyright law and the copyright law of the country they are accessing it from.

Those two factors mean that I draw the following conclusions. Unless it can be shown that the Lindisfarne Gospels were published more than 50 years ago, they are still in copyright in the United Kingdom. Since they are unique objects, they cannot have been published in their original form. That means that in order to be published a scholarly work on them or a facsimilie version would be the most likely sources. If they are still in copyright, which is most likely the case, then the British library has every right to slap a copyright notice on images of them. Even if the images do not themselves qualify for copyright protection, the object they depict DOES qualify for copyright protection. Since the object is deliberately, and not incidentally, included in the scene the photos are derivative works of that object. Under British copyright law, which is the one we have to worry about here, the exceptions to copyright are called fair dealing. It is illegal to copy a photo from a website in the manner which has been done here. None of the fair dealing exceptions apply.

Discussing US copyright law is irrelevant until British copyright law is out of the way. If the Lindisfarne Gospels themselves are out of copyright, then it becomes a whole new ballgame.

David Newton