Images and the internet - Enterprise and Regulatory Reform Act

[Kenton]

glass plate -> cellulose film -> plastic backed -> polaroid -> digital memory

 

pin-hole -> SLR -> DSLR -> Instamatic -> Camera phone

 

Things have "progressed". It used to be that taking a photograph of anything was for the "professional" photographer and required a great deal of skill and time (and expensive equipment). It is now available to even the most non-imaginative and half-witted to be able to point and click taking hundreds of images of just about anything. In my youth I was a member of a camera club, it felt like being one of the elite and my "claim to fame" is having 3 photos published in "Amateur Photographer" and another set of prints purchased for a trivial sum to be printed in another magazine. They were all B+W and to be frank were utter rubbish. I can now take hundreds of rubbish photos and publish them on the web just like everyone can.

 

Is it just another one of those industries/professions that are simply no longer relevant like coal mining or type setting in the newspaper industry or even the secretary. Time moves on but copyright law seems to remain based in the age of the quill pen and scribe.

[EddieB]

Is it just another one of those industries/professions that are simply no longer relevant like coal mining or type setting in the newspaper industry or even the secretary. Time moves on but copyright law seems to remain based in the age of the quill pen and scribe.

 

I disagree.  Just as camera phones have replaced 110 film cameras as the lowest common denominator, there's still a gulf between "professional" quality and the general mediocrity, just as there is between reputable publishing and internet blogs.  Even a half-decent image represents an investment of time and expense (travel, equipment) that endows it an intrinsic value.  It is up to the copyright owner where and how they wish to use their images, not for others to take from them.

[Kenton]

 

I disagree.  Just as camera phones have replaced 110 film cameras as the lowest common denominator, there's still a gulf between "professional" quality and the general mediocrity, just as there is between reputable publishing and internet blogs.  Even a half-decent image represents an investment of time and expense (travel, equipment) that endows it an intrinsic value.  It is up to the copyright owner where and how they wish to use their images, not for others to take from them.

But do the vast majority of people tell the difference or really give a damn? A pretty basic and fairly high resolution snap taken on a camera phone by someone who has no more knowledge of photography other than in which direction to point the camera will do perfectly well with the resolution required for internet viewing. As for written material in blogs (a little off topic) I for one would rather have a 100 opinions presented rather than one reporter with an agenda to follow or attempting corporate/personal indoctrination. I'd rather have all the facts than some twisted statistical manipulation.

 

But I guess this is all pretty irrelevant. I still cannot see how this piece of legislation resolves the issue it is meant to clarify. It seems to have been written (and reported) with the clarity of mud. I cannot see how it helps me identify the true owner of any image submitted by someone already claiming it to be their own. That is without some considerable expense and time.

[raymw]

Hi Kenton,

 

I cannot see how it helps me identify the true owner of any image submitted by someone already claiming it to be their own. That is without some considerable expense and time.

 

 

You may not be able to identify the true copyright owner of the image, but in many cases you should be able to tell if it is being passed on by a thief. In any case, in your publication, you will attribute the photograph to whoever says has the copyright - it is they that are committing the fraud, if any.

 

As in most cases, you can't stop crime happening. The best you can do is exact suitable punishment after the event. Hopefully, that deters others from trying the same trick.

 

Best wishes,

 

Ray

[Xerces Fobe2]

Hi Kenton,

 

 

You may not be able to identify the true copyright owner of the image, but in many cases you should be able to tell if it is being passed on by a thief. In any case, in your publication, you will attribute the photograph to whoever says has the copyright - it is they that are committing the fraud, if any.

 

As in most cases, you can't stop crime happening. The best you can do is exact suitable punishment after the event. Hopefully, that deters others from trying the same trick.

 

Best wishes,

 

Ray

 

And what punishment can you exact  when you find the person who stole your photo lives on a remote island like Tuvalu?

 

XF

[raymw]

XF, I would think living on Tuvalu would be enough punishment in itself

[Kenton]

 

You may not be able to identify the true copyright owner of the image, but in many cases you should be able to tell if it is being passed on by a thief. In any case, in your publication, you will attribute the photograph to whoever says has the copyright - it is they that are committing the fraud, if any.

 

Precisely how? If someone sends me an image file (or simply loads it up to the site) claiming it is theirs or that they have "permission from the owner" why have I any more reason to doubt them than the actual owner?

 

The problem with operating a web site is that submission of images can take place very rapidly and moderating (chasing up proof of ownership - whatever that might actually mean) takes up a great deal of time and money. Something offered genuinely by someone takes as much effort as something submitted by someone ignorant of copyright or someone just copying. In addition "proof" of ownership is nearly impossible to obtain.

 

On top of that the genuine owner (or even the malicious) don't care about who submits the image they go after the website owner publishing the image. Usually because:

1- it is a malicious attempt to bring down the website - they don't own every image but claims are made to disrupt and shut down the site. Very difficult to prove (as above).

2- they under some misguided belief that every website is operated by a billionaire from silicon valley and will pay up to stop the blackmail. (though in reality very few websites make any money or even collect contributions from visitors enough to pay for the cost of the server let alone running and operating costs. If they did then they could afford a solicitor who could tell the objectionable item where to go to flush themselves.)

 

Then when you respond by taking the image off the server, the original person submitting it as theirs gets upset and even joins in!

 

 

And what punishment can you exact  when you find the person who stole your photo lives on a remote island like Tuvalu?

 

Actually quite a relevant point. As websites are global and images can be submitted from anywhere in the world, even places where copyright law is not considered with the same retentive adoration.

 

I still think it should be a simple test of profitability. Is there profit being made? Then some recompense should be made to the originator of the work.

[Andy Y]

On top of that the genuine owner (or even the malicious) don't care about who submits the image they go after the website owner publishing the image. Usually because:

1- it is a malicious attempt to bring down the website - they don't own every image but claims are made to disrupt and shut down the site. Very difficult to prove (as above).

2- they under some misguided belief that every website is operated by a billionaire from silicon valley and will pay up to stop the blackmail. (though in reality very few websites make any money or even collect contributions from visitors enough to pay for the cost of the server let alone running and operating costs. If they did then they could afford a solicitor who could tell the objectionable item where to go to flush themselves.)

 

Then when you respond by taking the image off the server, the original person submitting it as theirs gets upset and even joins in!

That does happen; most frequently through the ignorance of the way anything works on the internet. Not too long ago there was someone whose images were on flickr with the settings made so that anyone could use the BBcode (in the correct manner) who then suggested he'd be making a claim against the site. Time consuming but all of the content was removed (whilst explaining it was decisions inside his control), he then said he hadn't asked for it to be deleted to which I responded he was seeking payment and he found the door firmly closed.

 

The most bizarre instance was someone threatening to sue me because people were looking at his pages from a link provided on here.

 

The dumb people are further forward in the queue than the malicious ones.

[Kenton]

 

The dumb people are further forward in the queue than the malicious ones.

And to be fair, the majority of photographers donate their images freely and with little interest in what happens to them on the internet.

[Glorious NSE]

But I guess this is all pretty irrelevant. I still cannot see how this piece of legislation resolves the issue it is meant to clarify. It seems to have been written (and reported) with the clarity of mud. I cannot see how it helps me identify the true owner of any image submitted by someone already claiming it to be their own. That is without some considerable expense and time.

 

To be fair, I don't think your issue is actually the one they are trying to change, they are trying to make it possible for somebody to use an 'orphan' image which is currently (at least theoretically) not usable as the copyright is not traceable - it's not intended to verify the provenance of every image on the web.

 

Your issue is not 'orphan' images, it's either ( a ) folk either sending you images as their own when they are not - or ( b ) chancers winding you up by claiming that images belong to them when they do not... that's an image with two claimed owners - sort of the opposite of an orphan image!

[Kenton]

 

To be fair, I don't think your issue is actually the one they are trying to change, they are trying to make it possible for somebody to use an 'orphan' image which is currently (at least theoretically) not usable as the copyright is not traceable - it's not intended to verify the provenance of every image on the web.

 

In part I see your point. But an image posted on the site which has no obvious copyright is by definition an orphan - even if the person positing actually does own it. We would assume that the person posting it owns it, but without proof. It is the difference between 1st and 3rd party that once an image is out there on the web, there is nothing to prevent copies being made and nothing to link the many copies back to the first party. So by definition they are orphaned. The person copying that image also has no way of knowing if the image they see on the internet is a copy of an originally owned image or one that has ceased to have an identifiable owner (as is the case with many old photographs) or where the owner has deliberately given up all rights and the image was originally posted for anyone to freely use.

[raymw]

Hi Kenton,

 

Precisely how? If someone sends me an image file (or simply loads it up to the site) claiming it is theirs or that they have "permission from the owner" why have I any more reason to doubt them than the actual owner?

 

That is the risk you take as part of your business.  Merely posting images on a web site generally does not earn much money, so  the true owner of the image is unlikely to pursue you through the courts/whatever. If the site earns you money, then maybe you will have to do a bit more work now, and show that you tried to authenticate ownership. I am not sure that the copyright rules have changed wrt fraud - i.e. someone passing off another's work as their own. You just need to make sure that you are not doing that, i.e. clearly state who has said they own the image. As I mentioned earlier, the law doesn't stop you from doing anything, so you are still at liberty to take whatever risks you wish - such is life.

 

I think the major concern is not with low cost web sites, but with the situation where an orphaned image has been used for, say, a high volume selling print. The original artist has some 'protection', provided they can prove ownership, etc.

 

When it comes to the international application of a local law, then that is another issue. I'm thinking that compared to what else goes on around the world, the thieving of low resolution web images will/should take a low priority.

 

I'm not sure what the excitement is on this forum concerning this issue. Very little, if anything will change. You'll still get the fraudsters, you'll still get the folk who think their image is worth something. It is all quite simple, if you can't stand the heat, get out of the kitchen.

 

Best wishes,

 

Ray

[billbedford]

In part I see your point. But an image posted on the site which has no obvious copyright is by definition an orphan - even if the person positing actually does own it.

Err no. The act expects people to use 'due diligence' in respect of finding the copyright owner (without actually defining what level of diligence is needed). As the very least this means that if your use of a work is questioned you would have to be able to show the courts that you have made reasonable searches and have the records to prove it.

 

But as people keep trying to point out the thinking behind this legislation has little to do the myriad of amateur photograph that are on the internet. One part of the impetus for it came from museums who are sitting on large collection of material that can't be readily commercialised because the copyright on much of it is not clear. Of course the simple solution would be to reset the time material can be protected by copyright to a more sensible 20 or 30 years, but that would put this country at odds with an other country whose government seems to be completely in thrall to their powerful media corporations.

[Kenton]

 

Hi Kenton,

 

That is the risk you take as part of your business.

Yes, that would be true if it were a business - but very few of these sites are businesses or indeed make any profit. Their maintenance and existence is purely altruistic and often the images contributed are, in the main, also altruistic. Given freely in the true spirit of the original internet to distribute and communicate information. Completely non-commercial.

 

Unfortunately there are some who joined it to make money (either in a fair way or extorting it).

 

 

Err no. The act expects people to use 'due diligence' in respect of finding the copyright owner (without actually defining what level of diligence is needed). As the very least this means that if your use of a work is questioned you would have to be able to show the courts that you have made a reasonable searches and have the records to prove it.

 

The problem though is that there is no way of performing any form "due diligence" without expending considerable time and money (neither of which any of these sites have in the first place) especially in the majority of cases it will result in a non-result. You are trying to prove something that cannot be proven, an orphan image has an owner that cares.

 

As already said, bad legislation driven by bad intent. Commercialising something that was originally donated to be in the public domain (a museum) rather than sold to make some anonymous agent some easy income.

[EddieB]

The problem though is that there is no way of performing any form "due diligence" without expending considerable time and money (neither of which any of these sites have in the first place) especially in the majority of cases it will result in a non-result. You are trying to prove something that cannot be proven, an orphan image has an owner that cares.

 

As already said, bad legislation driven by bad intent. Commercialising something that was originally donated to be in the public domain (a museum) rather than sold to make some anonymous agent some easy income.

 

If the costs of doing proper due diligence are too high, there are always legitimate alternatives:

 

+ taking your own images,

+ going to a photo library and paying their royalities.

 

Certainly no excuse for pinching someone else's work for commercial purposes.

 

Agreed that the legislation is (probably) poorly framed, but until all goods are free and everyone works for free, the owner of a work should be protected.  Likewise "some anonymous agent" who goes to the trouble of scanning, indexing, cataloguing and marketing deserves their crust.

[Kenton]

 

+ taking your own images,

+ going to a photo library and paying their royalities.

 

Both frankly, are simply silly options.

+ I don't have a time machine (neither does anyone) so cannot fly back in history and location to take photos of something. Even today's images cost me in travelling, someone passing or living nearby may donate them with the same altruist fervour than many have already done. Even expecting me to travel to each location and photograph as it is on that day is impossible - I simply am not going to live that long.

+ As indicated above I question the commercial motive of museums that contain photographic images donated for public use. If for example my father had taken good images of his work on the railways then had passed them to me. If I then passed them to a museum because they were of no use to me I wouldn't want that museum using that donation to make money, I'd rather simply destroy them. Royalties are only potentially payable if there is some profit being made - and as said above I have no problem with paying a sensible proportion of the profit being earned by an image on the site as long as the owner is identified and it is earning profit. The problem is the site does not make any money and the images (many) are orphaned.

 

But both of those suggestions do not go anywhere in terms of answering the core question about identifying who owns an orphan image or indeed if it is one in the first place. And most importantly, how to do this at zero affordable cost.

[Andy Y]

If I then passed them to a museum because they were of no use to me I wouldn't want that museum using that donation to make money, I'd rather simply destroy them. 

 

When I drop my unwanted old togs off at the charity shop I kind of hope they do get some money to save me filling up my waste bin.

 

I know it's a side show rather than the main subject but donations are what make museums worthwhile.

[Kenton]

destroy them

 

OK, all right, just so I'm not crucified by the mean green brigade, I should have said "recycle them" For me distinguishing between recycle and charity is pretty woolly, and in the case of old togs are closer to rags used to wipe paint/oil/dirt off things than anything a charity shop could resell or accept.

 

Even further OT, I don't mind museums charging an entry fee - in fact I'd rather they did. Then again they would protect their valuable collection of images by not publishing them on the internet.

[EddieB]

Both frankly, are simply silly options.

 

===

 

But both of those suggestions do not go anywhere in terms of answering the core question about identifying who owns an orphan image or indeed if it is one in the first place. And most importantly, how to do this at zero affordable cost.

Not half as silly as expecting to pick up something with intrinsic value (I see you recognise there's a cost involved if you were to take a similar image) for nothing.

 

The core question is answered easily: every image on the internet is owned by someone, unless they explicitly waive their rights (in favour of someone else).  This is what the legislation should be framed to protect.  There is therefore no such thing as an "orphan" image.

 

Simples.

 

Now, this being RMweb, is there someone prepared to scratchbuild me a Great Eastern T26?  I won't of course pay you for materials, or your time, and you will be unable to claim any intellectual property for techniques used.  I ask this because there are plenty here who build models just for fun, and the finished products are only of interest to other modellers, so have no great value.  Please form an orderly queue...

[Kenton]

 

Not half as silly as expecting to pick up something with intrinsic value (I see you recognise there's a cost involved if you were to take a similar image) for nothing.

 

The core question is answered easily: every image on the internet is owned by someone, unless they explicitly waive their rights (in favour of someone else).  This is what the legislation should be framed to protect.  There is therefore no such thing as an "orphan" image.

 

The trouble is that the legislators seem to believe there is such a thing as an orphan image - and there most definitely are. I have many images that have been sent into or simply submitted through the forum software (similar to RMWeb Gallery) All in theory were donated by the owner freely for the benefit of everyone visiting the site and for no financial reward. It is a fair bet that many others were simple orphans (have no traceable true owner) and there have been a few where the owner has volunteered themselves after publication and quite happily and in a friendly manner agreed to their continued use without seeking any aggressive retribution and only asking for their photo to be identified as theirs. Sadly there have been some rather objectionable beings who have demanded that the whole site be shut down, and others demanding money, and a fair few claiming that photos were theirs (including one I actually took!) - in the end everyone suffers as I cannot be bothered dealing with the detritus that exists on the internet.

[raymw]

I do not see what the problem is with this. If someone submits an item, ask where they got it. If you are dubious of the source, leave it alone. If you  think the person is OK, then publish, and give the source and the supplier's name. If you see something you like, ask the owner if you can have it. If you can't find the owner, don't use it. If you're talking about web images, then maybe link to them if dubious of original ownership. The rules will be simple, the same  basic methods, similar to which you may use in acquiring any other item. Within the UK, everything is owned by somebody - finders is not keepers (unless you keep quiet about it - and putting stuff on the web does not count as keeping quiet).

 

If, after thinking about it, you can't formulate the rules that work for you, and you think it is not worth the effort, or you're going to end up with few submissions, or whatever, just give up doing it and move on to something else. If whatever you were doing was important enough, others will start it all over again. If it is truly altruistic, the only person forcing you to do it is you.

 

If you want to give in to fraudsters, that is your decision. If you haven't bothered to verify ownership of what you are publishing, or pretending it all belongs to you, or published 'orphaned' stuff without any searching of ownership, then maybe you deserve the hassle.

 

fwiw, there are many areas where we can no longer be altruistic. Wait until someone falls off a ladder you have lent them, for example. It's just the way it is.

 

Best wishes,

 

Ray

[EddieB]

As indicated above I question the commercial motive of museums that contain photographic images donated for public use. If for example my father had taken good images of his work on the railways then had passed them to me. If I then passed them to a museum because they were of no use to me I wouldn't want that museum using that donation to make money, I'd rather simply destroy them. Royalties are only potentially payable if there is some profit being made - and as said above I have no problem with paying a sensible proportion of the profit being earned by an image on the site as long as the owner is identified and it is earning profit. The problem is the site does not make any money and the images (many) are orphaned.

 

Picking up this point, it is rather naïve to expect the recipient museum (or society) to provide a free service.  Although the images were donated and the museum has been given the right to reproduce them freely, they will still have a cost for storing, cataloguing, marketing and processing (scanning, printing or making available for inspection).  There are overheads in terms of space, power and staff costs.  Of course, most donations have scant labelling (scrawled notes on the back of a print or long-hand registers), which means a lot of work for the recipient to make them publically available.

 

Typically, an image "sold" by a picture library returns 50% to the library and 50% to the originator.  A museum should operate as a picture library where the originator's fees are waived - so I would expect reproduction fees to be roughly 50% of what a picture library would command.  I would agree that taking more goes against the spirit of the donation, but the museum should certainly more than cover their costs.

[96701]

I wrote to my MP about this, and got a response from the Constituency Office PA on House of Commons headed paper, no less! She enclosed a letter headed Enterprise and Regulatory Reform Act - Government Response: May 2013, and I quote verbatim and complete: -

"There have been several reports in the media incorrectly claiming that the new orphan works provisions in the Enterprise and Regulatory Reform Act will remove the automatic right to copyright owners of photos posted online. The powers will not remove copyright for photographs or any other works subject to copyright, and they will not allow anyone to use a copyright work without permission and free of charge. A licence will be needed to use an orphan work and this requires a diligent search for the copyright holder which will then be verified by an independent body. The applicant must also pay a licence fee up front at a rate appropriate to the type of work and the type of use. Only then will a licence be issued and a licence fee will be held for the missing rights-holder to claim when they are reunited with their work without having to go to court.

 

What constitutes a diligent search will be covered in robust regulations and guidance currently being formulated by Government with representatives from creators and the photography sector. It is important to point out that orphan works are unlikely to be contemporary photos as the cost of using such a work is likely to be the same as using a non-orphan work, so there is no incentive for orphan works to undercut non-orphan works.

 

The introduction of the orphan works scheme will be a positive development for creators as currently orphan works are not used at all or are used unlawfully, meaning that the creator may miss out on remuneration. However, due to these changes, creators will be able to check the register, free of charge periodically for any of their works that may have been wrongly declared orphan and claim remuneration when they are reunited with their work. The Government is working to make it easier and cheaper to get justice for copyright infringement."

 

I wonder if I've breached any existing legislation by retyping the above....................................