The Copyright

11 11 2013

Nothing attracts people more than photos or created images except the visible reality itself. Human beings always refer to images when it comes to understand things like the atomic model, to remember important and funny things in their life, or to get a first impression of new technologies.

The internet and social networks are overloaded with photos and images and their are some networks like Flickr totally based on presenting this kind of information.

Even if you start a Google Search there is an option to just show images Google retrieved from websites referring your search term.

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What about the Intellectual Property Law enacted by most governments and valid in more than 160 countries around the world since 1886?

We all know -at least, most people know- that it’s illegal to put your name on someone else’s work and call it yours or sell it for your own personal profit; this is considered as a copyright infringement.

But the laws of copyright are nuanced, and the line between copyright infringement and so-called ‘Fair Use’ is a blurry one at best.

There are some questions we usually do not think about.

Is it allowed

  • to retrieve images from websites and present it on a search page?
  • to post images found in the internet via Google+, Twitter, Facebook, and other networks?
  • to use images copied from a Google Search on websites, blogs, or in posts?
  • to financially benefit from images created by others by improving the attractiveness of the own website?

The simple answer is: NO, it’s not allowed.

People might think that the internet is a ‘Public Domain’ and everything found there is free to use.
This highlights a common misunderstanding about what is meant by ‘public domain’ when referring to copyright work. A work will fall into the public domain once copyright expires.
While work published on the Internet may be publicly accessible, it is certainly not in the public domain.

For the period of copyright, the copyright owner has the following exclusive rights. None of the actions below can be carried out without permission:

  • The exclusive right to reproduce the work, though some provisions are made under national laws which typically allow limited private and educational use without infringement (Fair Use).
  • The right to authorise arrangements or other types of adaptation to the work.
  • The exclusive right to adapt or alter the work.

The author also has the following Moral Rights:

  • The author has the right to claim authorship.
  • The right to object to any treatment of the work which would be ‘prejudicial to his honour or reputation’.

From the point of view of people who share images there are a lot of questions coming up when going into the details:

  • How can I see that an image is copyrighted?
    The answer:
    In most cases you cannot see it and you simply have to accept that the creator must not set any copyright note to claim rights on his work.
    An essential note on Googles website ‘Images may be subject to copyright’ doesn’t answer the question. It’s a notification not helping anyone to decide about further usage of content.
  • Is it already against the law if an image is shared as a file but the creator is mentioned or do I have to ask the creator when doing so?
    The answer:
    It is against the law (with some exceptions mentioned under ‘Fair Use’) and you have to ask the creator.
    But this is in most cases far away from reality. Nobody would share an image if he first has to find out the creator and then ask for permission. To find out the creator is an unworkable task in most cases.
  • Is the copyright still valid?
    Most copyrights are valid for a limited time but the detailed regulation depends on laws of each country. So do I have to contact an attorney’s office with international experience to find it out?
    The answer:
    Copyright is valid for 50 years AFTER publishing. Commercial Internet service providers (ISPs) began to emerge in the late 1980s and early 1990s and was commercialized in 1995 by removing the last restrictions on the use of the Internet to carry commercial traffic. So add 50 years to 1990 and all what you see is copyrighted until at least 2040.

The general problem was mentioned by Mike Allton on Google+ when he asked:

If you share a picture to social media, is it copyright infringement?

Well, the comments are highly interesting but don’t give rules to normal people like me who did not study law. All search engines make it easy to copy images and share them. Some social networks like Flickr even invite people to share images without controlling any copyright infringements and so they support acting against well-known laws which is, in some countries, an infringement as well.

The Copyright …

The term already gives the explanation: the right to copy.
Sharing an image not using a link but a file (jpeg, png, or any other format) is what everybody would name a process of copying. The Berne Convention says that this is a copyright infringement. Dot.

A large legal limbo comes up when somebody modifies copyrighted images, uses them in a another context or in a collage for commercial or non-commercial purposes even if he bought a license for using it!

If it comes to a lawsuit judges have to assess the case and nobody really knows what the result will be.

It’s out of question that selling of images underlying the general rule of Intellectual Property is against the law. Definitely. But bloggers and members of social networks usually don’t use images for commercial purposes. Anyway, posting an image might be a copyright infringement.

So here are some facts …

The convention signed by more than 160 countries regulating Intellectual Property Rights is the

Berne Convention
for the Protection of Literary and Artistic Works

That’s a really comprehensive convention which is hard to understand without an appropriate knowledge of juristic terms. So I extracted some basic content:

  • Copyrights are valid for a limited time depending on laws of each country but usually for 50 years after the first publishing. Basically every content whether it is an image or a textual work is seen as an Intellectual Property of the creator without any further notes pointing to any copyright laws.
  • An author from any country that is a signatory of the convention is awarded the same rights in all other countries that are signatories to the Convention as they allow their own nationals, as well as any rights granted by the Convention.

In case of images found in the internet people are usually not informed about any copyright. Even the website where the image was retrieved from is not a compelling evidence that the website operator owns a copyright.

Note
It’s an act of honesty to forward a wallet to the police so that the owner has a chance to get it back. But what to do if the wallet doesn’t contain any documents about the identity of the owner? Even the wallet looks like a 08/15 wallet bought in a supermarket produced a million times in a developing country. You should give it to the police anyway but it cannot be stringently proved that the person claiming it back is the real owner.

So on my point of view it’s a general flaw of all laws and conventions not to persist on setting a copyright notice.

The consequence is that we see hundreds of thousands of copyright infringements daily.

Bounden duty …

It’s up to creators to do one’s bit and mark their own work as copyrighted. Otherwise they should know that their work is used by thousands of people not referring to him as the creator.

My personal opinion is that they have to bear part of the blame. There are a lot of easy to use techniques with which the authorship can be set. It helps website visitors and it additionally helps the creators to tell the world that ‘It’s me who did the artwork’.

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Note
I created this collage by using 4 images (mind map, head in the foreground, brain in the background, black arrow) I found in the Internet to visualize the main message which is about the benefit of a mind map.
Even if all images are copyrighted no court would say that my image is a copyright infringement.

Exceptions …

Under law, it is generally unlawful to distribute (or reproduce, publicly display, publicly perform, etc.) a copyrighted work without authorization from the copyright owner. However, there is a fair use exception ‘for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research.’

Courts examining whether a use is fair consider a set of four factors:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  • the nature of the copyrighted work
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • the effect of the use upon the potential market for or value of the copyrighted work

A school teacher who hands out a copy of an image to students for discussing a topic is in the line of ‘Fair Use’.

But not all scenarios are so straightforward. When assessing the ‘purpose and character of the use’ for more complex scenarios, courts give significant weight to whether the use is ‘transformative’. If the secondary use adds value to the original this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Anyway the creator of the original work should be named if possible.

The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

See all the collages on my blog which I created myself.
They all add value to the original images and so the ‘Fair Use’ principle is complied with.
All the images use other images found in the internet but put in a new context where to possibly copyrighted material is just used to visualize something new in a context to my blogs. There is no focus on any of the possibly copyrighted images and additionally my blog is not for any commercial purposes.

Laying down the rules …

As I mentioned above the line between copyright infringement and so-called ‘Fair Use’ is a blurry one at best. So it’s recommended to carry out these instructions:

  • Don’t share an explicitly copyrighted image without a license.
    If you want to get a license first read the Terms of Conditions.
  • Don’t share an image which looks like artwork.
    Share a link.
  • If you use images for non-commercial purposes integrate them in a collage and add value. Additionally label the website where it was retrieved from.
  • If you are a photographer just share you own images.
  • Resharing of a copyrighted image does not prevent fraudulent use.

It’s always up to YOU to make sure that the image you have shared is within legal requirements for Fair Use. If you share an image you did not create yourself, you are liable. It dosent matter if you shared it from a page that shared it a zillion times, when it ends up on your post or page that responsibility now lies with you.

More questions? See this comprehensive overview about

Copyright Myths

Strange advices …

See this strange advice of Facebook regarding the copyright. It’s simply nonsense.
FB users should place this or a similar note on their account:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. (as a result of the Berne Convention).

Your copyright is already automatically attached to any intellectual property you post to Facebook, as Facebook itself acknowledges in its ‘Help Center and Statement of Rights and Responsibilities’:

You retain the copyright to your content. When you upload your content, you grant us a license to use and display that content.

Indeed, the Berne Convention, which governs copyright in almost every country, mandates that copyright be automatic; i.e., registration, or copied-and-pasted status updates, aren’t required.

Consequences …

The fact is, that if a publisher catches you sharing copies of their images still under copyright protection, they can charge you with that and take you to court. The amount of the fine that the judge orders you to pay may be less if you didn’t charge any money for the copy you distributed but it would be a fine, nonetheless.

Summary …

Create images by yourself following the ‘Fair Use’ principle and become a copyright owner. Set a watermark or a copyright if you want to tell the world that’s you who did it or tell the people that you don’t claim a copyright and give others decision support.

Create images by yourself using e.g. Apple’s app Keynote (part of the iWork suite) and add value to inserted other images. While creating an image referring to a post you again think about your topic. Summarizing a post by creating an image is a funny task. Try it out. For details please refer to my post

Collages with Apple’s Keynote

Be careful when sharing images without any copyright note. Name the source or just use a link. It’s obvious not to share images already marked with a copyright.

If you are not sure of doing an infringement don’t publish.

And by the way …

If you find a great image give the credit to the publisher if he is the creator also. Don’t feel a compulsion to share the copied material with the world again. Place a link to the authors source. Decent behavior in a social network is to give the credit to the creator and not claiming it four yourself. You know that Likes and +1 often are given to reshared content. Some people will recognize your unsocial behavior in the social network.

Related links …

World Intellectual Property Organization
Edudemic: Teachers Guide to Copyright and Fair Use

Thanks for dropping by.

By the way …
There are no copyrights on images I created here on my blog or on Flickr, Pinterest, or Google+. You may use all of them to your convenience. But please, don’t put your name on it.


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