The National Trust is, at least in part, relying on byelaws for authority to regulate photography on its property. As the private landowner it can impose whatever terms it likes, but does not want to appear arbitrary. It warns that breaking any of its byelaws is a criminal, not civil offence.
Successive National Trust Acts have enabled the NT to make up its own byelaws, in the same way that local authorities do. NT byelaws are framed to regulate nuisance to visitors and damage to NT properties, and safeguard its aims. They deal with misbehaviour like littering, lighting fires, swearing, stealing plants or grazing animals. They do not create a commercial monopoly in photography as a defence against 'exploitation' nor allow it to control its image, despite NT claims to the contrary.
In the 1965 byelaws is this restriction on photography:
"17 'No unauthorised person shall on Trust Property sell or offer or expose for sale any commodity or article or for the purpose of trade or reward take any photograph'
It is this byelaw that the NT insists gives them the legal right and duty to limit photography to amateur, personal use. And further to prohibit sale to buyers and submission to libraries, as criminal offences. It seems clear cut.
But what the NT does not mention is that the section in which 17. appears is headed 'Hawking'. Hawking is the practice of opportunist street selling, involving 'swooping' on prospects. The intention of the Byelaw when created was to prevent, for example, photographers with monkeys haranguing NT visitors for trade.
In other words, this byelaw has nothing to say about commercial photography in the context of editorial or stock purposes because they are in no sense 'Hawking'. The NT appears to be twisting its own laws for the purpose of commercial advantage.
Interestingly, the penalties are anyway substantially less than NT charges for permits.
Penalties for Infringement of Byelaws 26. Every person who shall offend against any, of the foregoing Byelaws shall be liable on summary conviction to a fine not exceeding £20 and in the case of a continuing offence to a further fine not exceeding £2 for each day during which the offence continues, or such other maximum as may be specified from time to time by any Act of Parliament enacted after the date hereof.
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Just to note that s. 40, Criminal Justice Act 1982, as amended, increased the fine from £20 to £200. The £2 per day bit was not changed.
Just to update people. I've been following the NT's formal complaints procedure and having exhausted the first stage which was pretty much a 'brush off' I've now received a letter in response to the second stage of the procedure fro Sue Wilkinson, marketing and supporter Development Director saying that she 'is most concerned to read my comments and will be investigating the matter further'.
Knowing the NT don't hold your breath! However when I get a spare bit of time I might start putting my letters and their responses online so that they can be followed in detail!
Yes, I noticed that s.37 of the 1907 NT Act earlier this week and discussed it with EPUK moderators. I agree, it looks even less likely NT has the powers it claims, especially on open land with evidence of historic use. As you said, NT appears to have a bad dose of the ultra vires.
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I've had a dig through the legislation and would bring your attention to Section 37 of the National Trust act 1907
"All rights of common commonable or other like rights or rights of way in over or affecting the Trust property shall remain and be unaffected by the provisions of this Act and save as in this Act expressly provided nothing contained in or done under or in pursuance of this Act shall take away abridge or prejudicially affect any estate vested in or any right belonging to and previously to the passing of this Act exerciseable by any person. "
Thus one could presumably argue that if the right existed prior to the formation of the NT to take photos (and sell them presumably) one could surely argue that the NT is expressly forbidden to do anything to affect that right. Commercial photographs (postcards etc) taken prior to 1907 must exist in respect of many NT buildings; proving that the right existed before the NT came into being. Just a thought!
Have you ever dealt with the NT before?
they are a law unto themselves and treat their visitors with contempt.
Good luck on getting anything other than a pithy answer from them that explains nothing.
Self-regulation appears somewhat discredited lately! However it's certainly worth individual photographers with specific personal complaints taking that route.
EPUK will continue to press NT to show a legal basis for their claims to restrict the business of our members, or withdraw the claims. We aren't giving up because they dislike the question or can't be bothered.
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Can I suggest that it might be worth making a formal compplaint using the NT's complaint procedure?
http://www.nationaltrust.org.uk/main/w-global/w-contact_us/w-complaints_...
which has laid down timescales and an external adjudicator?
Most recent attempt at dialogue was sent on 22 May by one of the EPUK directors:-
No response has been received.
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I am now more than ever convinced that the NT are spinning this way beyond what was intended and that their claims are probably ultra vires and came to the same conclusion as above that the act does not give them the powers they claim.
Has any response been received yet?
Further investigation indicates that the National Trust does not have legal powers to regulate photographic 'exploitation'. There appears to be a considerable gap between NT policy, what it would like to be the case, and real life.
Chris Rowlin, Rights manager of the National Trust Picture Library, set out the NT's position in a letter to Ned Ward, published in the RPS Forum. Rowlin claimed:
"The National Trust is protected from unsanctioned commercial exploitation by a byelaw passed in 1965, which states:
No unauthorised person shall on Trust Property sell or offer or expose for sale any commodity or article or for the purpose of trade or reward take any photograph'.
This section of the 1965 National Trust byelaws is the basis on which the Trust's photographic policy is based."
Rowlin and other NT representatives have made this assertion repeatedly, and it forms the basis of NT's insistence that images of NT property be removed from Alamy.
Uniquely, the NT was granted powers to create byelaws by Parliament, in furtherance of its role of preserving land for the nation. NT now claims that the purpose of these byelaws is to safeguard it from exploitation, and it claims that photography for any commercial use on open land is a criminal offence. This has been stated to include photos of flora and fauna.
As pointed out above, the context of this byelaw offence is 'Hawking' not 'Unsanctioned commercial exploitation' as Rowlin claims, and the byelaw simply has no relevance nor applicability to people photographing on NT land, for sale or otherwise, provided they are not causing damage or harassing visitors or wildlife.
In fact if you read the byelaws, they are all phrased to do one thing : regulate nuisance and damage. You can't set up structures or fairs or light fires or graze animals or damage things or steal plants or gravel. None mention let alone aim to prevent the exploitation that NT claims is the intention of the byelaws and the basis of its policy on photography.
There is a reason for that. NT's power to create byelaw is defined by S.24 of the National Trust Acts 1907-2005.
"24.
(1) The National Trust may make byelaws for the regulation and
protection of and for the prevention and suppression of nuisances
and the preservation of order upon and the regulation of the conduct and securing the safety of any person resorting to any lands or property of the National Trust held for the benefit of the nation,..."
So it appears NT have no power to make byelaws which restrict photography in the way they claim, and whether the photos sit in a box under the bed or get published or sold in galleries is beyond their remit. Or it should be, if NT was functioning within Charity Commission rules which prohibit trading. The only possible reasons for NT's distortion of its own rules appear to be the wish to protect the profits of a trading would-be monopoly, its subsidiary NT Picture Library, and its wish to overtly 'control its image'.
We now seem to have a situation where NTPL is setting the NT's policy, and NT is falsely threatening photographers whose activities are legal and entirely consistent with the charitable aims of the NT, with powers it doesn't have and that Parliament never granted nor intended it to have.
EPUK wrote to NT two weeks ago asking for an explanation of these claimed legal powers to suppress 'exploitation'. Receipt has been acknowledged, and since then silence. Unless we do get an explanation, this looks like a matter that should be brought to the attention of the Charity Commissioners.
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