24 February 2011

The Images Of Your Fairness


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All Rights Reserved*photo © 2009 Paul Gallo | more info (via: Wylio)

I bet you are pretty much familiar with the sign above, are you not? On the Internet, you can see it almost everywhere, but particularly with respect to images.  Why is this so? Well, it indicates that the work it applies to is protected by copyright. Nevertheless, rights in images are just too often infringed and misappropriated on the Internet.
This is not surprising, since images, photographs and pictures are considered impressive addenda especially to weblogs. The famous blogger Mack Collier has written a blog post on the marketing power of pictorial content. However, I will leave the marketing to Mack and stick to my last, that is the legal perspective of utilizing images on weblogs.
I would start addressing this question:

What is the legal nature of images?

Images or photographs represent a protected subject matter under copyright law. They are works. Generally, works must fulfil some requirements in order to qualify for copyright protection, but the threshold relating to images has often been said to be rather low.
The British, for instance, have never scrupled to place every variety of photograph within copyright. Once produced with a sweat of the brow, a photograph needs not show an artistic quality.
Albeit not identical, the test under US law is similar to the one under UK law. It differs in that it requires a minimal degree of creativity.
Authors’ rights systems such as France and Germany tend to give copyright only to photographic works, that is the results of careful and distinctive arrangement, involving an element of aesthetic judgment.
But be cautious – in those jurisdictions the law on unfair competition provides for a “catch-all” protection, hence even images that do not qualify for copyright protection are not free-for-all.

What does the copyright protection of images mean?

Copyright owners (or right holders) are granted exclusive economic and moral rights in their works. While moral rights seek to protect certain non-pecuniary interests of authors, the economic rights enable them to control the economic exploitation of their works. In my view, the most important economic rights relating to images on the Internet are

– the right to make copies of the image;
– the right to distribute such copies to the public, and
– the right to communicate the copies to the public by means of an electronic transmission.

The general rule is that, whoever undertakes one of the above activities without author’s or right holder’s permission, is liable of copyright infringement. As a consequence, an infringing user is likely to be liable for tort or, depending on the jurisdiction, even for a criminal offence.
I wrote “the general rule” above, because copyright legislations usually seek to strike a fair balance between copyright owners’ and users’ interests. Hence, in some occasions even the unauthorized use of copyrighted images would not result in an infringement – it could be prejudiced by doctrines of limitation.

What are the limitations or defences you may rely upon with respect to images?

While Internet users under an author’s right jurisdiction may rely on narrowly statutorily defined limitations, users in either the United Kingdom or the United States are bound to the underlying notion of fairness.

In other words, if a user under an author’s right jurisdiction copies, distributes or communicates an image on the Internet and such copying, distribution and communication to the public falls within a statutory limitation, it is exempt and does not constitute infringement.
By contrast, a user in the US may benefit from a general fair use defence when accessing and using images. Fair use covers different purposes and applies to both commercial and non-profit use. A user in the UK may rely on something that is half-a-way between the author’s right and the US systems. UK copyright law is akin to author’s right laws in that it provides users with a defence, if their use relates to statutorily defined purposes. By the same token, it shows  similarities with US law in that there is a requirement that such use be fair. The defence under UK law is referred to as fair dealing.

How can you apply the limitations or defences to your use of images online?

Applying the limitations or defences to images will not each time be easy. For instance, the limitations under the laws of France and Germany as well as the fair dealing defences under UK law are comparatively narrow and are enumerated exhaustively. The US fair use doctrine, albeit not exhaustively legislated, also covers just specific purposes.
One could summarize those to the following:

– private or individual use (author’s law systems only);
– criticism, analysis, cultural discourse;
– news coverage and
– research.

Which of the above would be beneficial to a blogger? Hmm, not many. The private or individual use, for instances,  applies only to the act of copying, whereas the copied image may be used only within the private sphere. Uploading an image on a weblog is far more than just copying and once put on a weblog, the copied image leaves the private and enters the public sphere.
If you upload images on your blog for the purpose of criticism and analysis, then your outlook is bright. The same is almost true with respect to news coverage: unfortunately, using images for that very purpose does not qualify as fair dealing under UK law. Researchers among the bloggers (and I would figure myself belonging to them) have again good perspectives and, given their fairness, may rely on limitations and defences in all of the abovementioned jurisdictions.

Well, not very promising, huh? There must be another way to design your blog with pictures in a compliant and lawful manner.

What do you know about Creative Commons?

Creative Commons (CC) licenses were developed to create a more flexible copyright model, replacing “all rights reserved” with “some rights reserved”. Among them there are some which are rather permissive, thereby requiring a mere attribution to the author of the work. Others are really restrictive and forbid modifications to and/or commercial use of the work. In any case, the CC licenses call upon the fairness of the users.
You can search for images licensed under a CC license on Flickr or access them directly via Wylio.

Final thoughts

As you could see, there are some ways to lawfully access even “all rights reserved” photographs and communicate them on your blog. Besides there are innovative and culture distribution friendly license models that also allow you to use pictorial content on the Internet, albeit with “some rights reserved”.
What you should bear in mind is to be fair towards the authors and copyright holders, because the pictures on your blog represent the images of your fairness!

 

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25 June 2010

Do not misappropriate the law, guys.


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Locked books. Courtesy to presscafe.org

It has been a long time since I wrote my last posting related to Bulgaria. During the last days, however, a police campaign or even a raid directed against the online content provider www. chitanka.info (chitanka meaning an alphabet book in Bulgarian) achieved a huge medial attention and, particularly, that of the Bulgarian blogosphere. While the police claimed a success over a group engaged in “Internet piracy”, journalists and bloggers saw an attack against the knowledge society in Bulgaria.

What was the problem in the first place?

Chitanka.info had digitised numerous printed books and made them available on the Internet to the world at large. In legal terms, chitanka.info had copied and adapted (mainly literary) works and subsequently communicated those to the public. On the grounds that, the foregoing acts represented acts restricted by copyright law, publishers and right owners’ associations argued that chitanka.info had infringed the copyright in the works, because they acted without the consent of the respective copyright owners. Apparently, these very right owners instructed the police to raid chitanka’s premises and to seize the equipment hosting the arguably infringing materials.

 

Top police investigator Yavor Kolev seizes one of chitanka's servers. Courtesy to bnews.bg

The operators of chitanka.info raised several defences, some of which were legal by their nature and some that were not. Regarding the latter they argued that their offering addressed school kids and thus served to satisfy primary educational needs. They further argued that some of the books they offered to download represented sold-out editions, not re-published since then and thus no longer available in bookstores. Eventually, they stressed on the misery reigning in public libraries and on the fact that today’s consumers demanded an online access to books, but publishers yet failed to (legally) satisfy this demand. Chitanka.info’s legal defences grounded on Art 24 (9) of the Bulgarian Act on Copyright and related Rights (Copyright Act) and on the fact that their offering was merely altruistic as it did not depend on a payment.

I would like to focus on chitanka.info’s legal defences in this posting. Art 24 deals with the free (fair) use of works for which users neither need tot obtain the copyright owners’ consent nor owe they any payments in connection with thei use of those works. Subsection 9 of this Article regards – as the Bulgarian and hence legally binding version of the act calls them –  the “publicly accessible” libraries. Please observe that the English translation of the act accessible via the link above refers to “public libraries”. This ostensibly unimportant distinction, displayed by the translation and of later relevance, might prove decisive for chitanka.info’s case.

To the best of my knowledge, neither the Bulgarian Copyright Act nor other legislation in force in Bulgaria defines the term of a “publicly accessible” library. By contrast, the Bulgarian Public Libraries Act delivers a definition of the term “public library”. Accordingly, a library needs to comply with certain requirements set out in Art 8 of said act, in order to be deemed a “public library”. There is no doubt that chitanka.info does not comply with those requirements. The Public Libraries Act was, however, delivered in 2009, whereas Art 24 (9) of the Bulgarian Copyright Act was last amended in 2005.

The issue suggests a few logical questions:

  • What did the lawmakers have before eyes when they drafted the Public Libraries Act?
  • Did they consider the “publicly accessible” libraries as mentioned in the Copyright Act, and
  • Are public libraries to be equated with publicly accessible libraries at all?

Depending on the answer of these questions, there might be following solution approaches:

  1. The terms public library and publicly accessible library are identical. Since chitanka.info does not qualify as a public library it likewise fails to qualify for the limitation under Art 24 (9) granted to publicly accessible libraries.
  2. The terms are not identical and the lawmakers did not intend to curtail the limitation under Art 24 (9) to only public libraries. Moreover, the limitation should apply to any library that is publicly accessible. Chitanka.info would then qualify for the safe harbour provided by Art 24 (9). Public libraries would qualify as well as they are by their definition “publicly accessible”.

It will be up to a court of competent jurisdiction to decide somehow or other. I personally would support the second solution approach as I am of the opinion that copyright law is misappropriated when used to prevent the spreading of information, particularly for educational purposes. My friendly piece of advice to the police would then read: do not misappropriate the law, guys.

 

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