Copyright is a complicated thing. Members of the HEMA community participate in an activity that is inextricably linked with material that may well be copyrighted in some fashion, and therefore it is helpful to understand what copyright is and how it works, so that we can talk about it intelligently and avoid falling into any awkward legal situations.
Who owns the original sources?
This is a good question. Typically, the source itself (i.e. the physical book) is owned by whichever individual or institution has bought and paid for it, or to whom it has been gifted or bequeathed. Just as any of us today may purchase and therefore own a copy of this book or that book, or may buy and therefore own a unique piece of art, so any individual or institution with enough spare cash may purchase and therefore own an original copy of one of the historical fencing sources.
When there were several original copies (consider for example the 1570 printing of Joachim Meyer’s book, when many copies were printed), there may be several surviving original copies. Therefore, several individuals or institutions may each own one (or more!) original copies of a given work.
How are copies made and who owns these?
Modern copies (high resolution digital scans, or high quality photographs) of the original sources are often created today, and these are the copies to which our community tends to have access, perhaps via the Wiktenauer, or directly from library or museum websites.
As discussed in part 1 of this series, a work is considered to be in the “public domain” and therefore free from any copyright restrictions once a certain amount of time has passed. For manuscripts created in the 15th or 16th century, the works themselves are definitely in the public domain! Even sources created in the 19th century will tend to be in the public domain. However, it is the original copy of the work that will be in the public domain.
Any scans or photographs created today tend to be treated by law as a new work created by the person or institution creating the scans or photographs. These new works (sometimes known as “digital assets”) are covered by copyright, to give that individual or institution control over who may copy these new works.
It is important to understand the difference between original copies and modern copies, between historical works and modern works. The original copies and works tend to be out of copyright and in the public domain, but the modern copies and works can very easily still be covered by copyright due to having been created within the last several years.
How does copyright work in this situation?
Anyone in possession of a historical source that is in the public domain may make a new copy of it. That is nice and simple!
If a museum or an individual creates a set of high resolution scans of an original source, then the copyright to these scans is owned by whoever created them. The creator may then guard the copyright and use it to raise funds to continue their work (many museums do this to help increase their often-too-small budgets), or they might choose to release the scans under some kind of open, “copyleft,” or other general purpose licence to improve access and reuse of the work.
What about transcriptions and translations?
Transcriptions of an original source are modern works, and therefore the transcriber holds the copyright to that work. It takes an amount of skill and time to be able to create a transcription of a historical work, even more so if the source and handwritten script are older, so it does count as a piece of work that can be copyrighted. If you want to use more than just a line or two of someone’s transcription of a source then you need to ask them for permission to use their modern work.
In a similar fashion, translations are also a modern work, and the translators hold the copyright to their work. If you want to use more than a couple of lines of a translation in your own work, then you need to seek permission from the copyright holder.
It is all too easy to fall into the trap of assuming that just because the original source is old, the scans and translations of it are free to use for whatever project. That is not the case.
When trying to use a modern reproduction (in any format) of a historical source, you should assume that modern copyright rules are in force unless you know for a fact that in this specific case, they are not. As a general rule of thumb, you should ask for and receive permission before using anyone’s scans, transcriptions, translations, or suchlike.
It can often be as simple as dropping the person an email to say “can I please do this?”, to which they may well respond with a simple “yes”. It might be more difficult to deal with museums and libraries, but it still follows the same principle.
Thanks and disclaimer
I would like to thank Brian Puckett for his input on this from the United States perspective, and for general proofreading and suggested edits. The article is much stronger for his input!
I am not a lawyer specialising in copyright legislation (and neither is Brian), and this article should not be considered formal legal advice. Instead, this article covers certain general legal information that is not necessarily applicable to any specific legal matter. It is intended to be an introduction to the ideas of copyright and how they may apply to the community – no more than that.
Keith Farrell teaches HEMA professionally, often at international events (why not hire me to teach at your event?), and has an interest in coaching instructors to become better teachers. I teach regularly at Liverpool HEMA, and help behind the scenes with running HEMA in Glasgow at the Vanguard Centre.