Pandora’s Box of sorts
was opened by the United Kingdom in the form of the “Enterprise and
Regulatory Reform Act” receiving Royal Assent for consideration as a law. Andrew
Orlowski, Executive Editor of the “Register”, a British technology news and
opinion website, dubbed it as the “Instagram Act“, and entitled it with the
phrase, “all your pics belong to everyone now”.
The clause raising
hackles is the “Orphan Works and Extended Collective Licensing Clause 77”, which
basically allows granting of licenses for orphaned works allowing any act with them that would otherwise be restricted by
copyright and require the consent of the missing owner. The jury is out on
the definition of orphaned work which the act describes as – content
who’s “owner of copyright in it has not been
found after a diligent search made in accordance with the regulations.” The publisher
can obtain a non–exclusive license in respect of a work if after a
"diligent search" they can demonstrate to an independent body that
the owner cannot be traced. A fee would then be payable which would be used to
reimburse the owner if they later made a claim. But as they say, the devil is
in the details. Let’s review the article of the now famous “Instagram Act” and
its implications on social media including second life and a rethink whether
this is a Shakespearean “Much Ado About
Nothing” or is there true merit to the vociferous opposition.
A look at the Act
1. The Enterprise
and Regulatory Reform Act 2013: Excerpt from the original version (as it was originally enacted) (1) --- “Instagram
Act”
77. Licensing of
copyright and performers’ rights
116A. Power to provide
for licensing of orphan works
The regulations must provide that, for a
work to qualify as an orphan work, it is a requirement that the owner of
copyright in it has not been found after a diligent search made in accordance
with the regulations.
116B. Extended
collective licensing
The regulations must provide for any license
not to give exclusive rights.
116C. General
provision about licensing
The
regulations may include other provision for the purposes of authorization and
licensing, including in particular provision—
For
determining the rights and obligations of any person if a work ceases to
qualify as an orphan work (or ceases to qualify by reference to any copyright
owner), or if a rights owner exercises the right referred to in section 116B (3),
while a license is in force;
WHY IS THIS IMPORTANT TO ME?
If
you create work that you copyright or use copyrighted work in your profession,
you need to understand the nuances of how this law will affect you. Also there
is a misconception that it affects only “photographs” and “only the UK” but it
affects you and me, because no matter the country we are in, we create works
like a you tube video, face book or a blog post image almost every day. This
uploading process often strips away important metadata which could be used to
locate the author i.e. “you”, and the work in effect without any owner becomes
“orphaned work”. Sometimes the organizations doing this are unaware that they
are stripping metadata in the upload process itself. Thus the internet, and in
particular social media, has created situations wherein work is becoming
orphaned on a daily basis. For example, take a photograph that is posted on Flickr
then on Face book where it is liked by your friends who know that it is yours, and
repeatedly share it around, then is uploaded onto Twitter. By the time a
publisher comes across it, it may have become quite impossible to identify the
original author.
HOW IS ORPHAN WORK CREATED…? (2)
·
The
copyright owner did not place information about themselves in their work before
release.
·
The
copyright holder died or closed shop.
·
The
copyright owner did not understand the need for copyright in the first place.
·
The author was deliberately anonymous or worked
under a pseudonym and did not intend to copyright in the first place.
·
The time period of
copyright elapsed as per the internationally followed “Berne Convention” excerpt—
“all works except
photographic and cinematographic shall be copyrighted for at least
50 years after the author's death. For photography, it sets a minimum term
of 25 years from the year the photograph was created, and for
cinematography the minimum is 50 years after first showing.”
·
Metadata stripping from uploaded content by
organizations “knowingly or unknowingly”…
·
The explosion of user, i.e. “you and me” creating
content and uploading it (eg. facebook/you tube) without realising how it is
going to be used.
IN FOCUS: THE REGISTER ARTICLE: (3)
Andrew Orlowski has definitely drawn curiosity
exciting the emotionally charged aspects saying , “Amateur
and professional illustrators and photographers alike will find themselves
ensnared by the changes, the result of lobbying by Silicon Valley and radical
bureaucrats and academics. The changes are enacted in the sprawling Enterprise
and Regulatory Reform Act which received Royal Assent last week, and it
marks a huge shift in power away from citizens and towards large US corporations.
How so? Previously, and in most of the world today, ownership of your creation
is automatic, and legally considered to be an individual's property. That's
enshrined in the Berne Convention and other international treaties, where it's
considered to be a basic property right. What this means in practice is that
you can go after somebody who exploits it without your permission - even if pursuing
them is cumbersome and expensive.”
He feels the nitty gritty
provisions of the act are just an eyewash and says, “Since most digital images on the internet today are orphans - the
metadata is missing or has been stripped by a large organisation - millions of
photographs and illustrations are swept into such schemes. For the first time
anywhere in the world, the Act will permit the widespread commercial
exploitation of unidentified work - the user only needs to perform a
"diligent search". But since this is likely to come up with a blank,
they can proceed with impunity.” “The Act also fails to prohibit sub-licensing,
meaning that once somebody has your work, they can wholesale it. This gives the
green light to a new content-scraping industry, an industry that doesn't have
to pay the originator a penny.”
His doomsday prediction being “In practice, you'll have two stark choices
to prevent being ripped off: remove your work from the internet entirely, or
opt-out by registering it.”
OPINIONS ARE LIKE WATCHES… EVERYONE HAS ONE:
At the cost of sounding like the devil’s
advocate, while it
is an admirable act making the technical
language of the law simpler for mass consumption, and the fact that we are all
entitled to our opinion, it is yet very
important as writers for mass media that we do so, without the sensationalism bordering
on yellow journalism. Placing my refrigerator without identification out
on my lawn and finding gone the next day, I ought to see it coming. In an ideal
world it would still be there. It remains true that when you upload something
on the internet, apart from the right to having your work recognized and credit
being given to us, the fact is that we ought to have responsibility for the
content we upload. I cannot hope to upload whatever strikes my fancy without
properly identifying the material and hoping that no one would use it. It is
another matter entirely when someone still chooses to do so inspite of taking
measures. That’s plain and simple stealing which is going to happen no matter
we wish for it or not. The
appearance of properly titled and referenced material should increase and better credit can be given
rather than the haphazard mess that is now plaguing different unknown forms of
work. It might even make the internet more authentic because now everyone has
to bear responsibility for their work. The ones who
have suffered wild goose chases while trying to hunt the name behind the
photograph or video or a piece of music or even advice in a forum can easily
relate to this. Many a stuff is out there under “anonymous” talking about life
altering medical remedies which are horrendous to say the least. The potential
misuse of a law cannot justify revoking of all laws. The “internet” as of now
is “freedom with anarchy”. The fear
that a gun can shoot me is not legitimate reason enough to ban guns or,
conversely, guns are themselves not harmful; so we do not need a license for
guns, is also not really a productive approach.
In essence, an automated, industrial scale system for metadata
stripping is occurring even today without the law. The WIPO Copyright Treaty (7) provides
protections that,
“ensures
that computer programs are protected as literary works. It also prohibits
circumvention of technological measures for the protection of works and unauthorized modification of rights
management information contained in works.”
In the US stripping copyright data is supposed to be illegal under the
revised copyright laws. So why has no one sued those “major companies” who
“orphan” images by stripping the copyright data?
At the
end he says, “So while the Twitterati and
intelligentsia were ranting away about "Big Content", we've just lost
the ability to sell our own content.
In other words, you've just been royally fucked.” Colourful
oversimplification of the issue is seen. We have not lost ability to sell our
own content. We need to take more responsibility for the content we put up.
The Myths and Facts: (4)
Myth – anyone can use work they have found on the
internet as an “orphan” if they cannot find the copyright owner after a search
Fact – A license
must be obtained to use a work as an “orphan”. This will require the applicant
to undertake a diligent search, which will then need to be verified by the
independent authorizing body which the Government will appoint before a work
can be used.
Myth – anyone will be able to use my work for
free if they cannot find who owns them?
Fact – If a work is
licensed following the verification of the diligent search, there will be a license
fee payable up-front for its use. The fee will be set at the going rate.
Myth - the stripping of metadata creates an
orphan work
Fact – the absence or
removal of metadata does not in itself make a work “orphan” or allow its use
under the orphan works scheme
Myth – I will have to register my work to claim
copyright
Fact – Copyright
will continue to be automatic and
there is no need to register a work in order for it to enjoy copyright
protection.
Myth – the UK is doing something radical and
unprecedented with the Orphan Works powers
Fact - Other
jurisdictions already allow the use of orphan works. The UK powers are largely
based on what happens in Canada – which has been licensing orphan works since
1990.
THE GOOD:
1.
National
Treasure: The Act is trying to give a home to the “treasure
chest of history in the attic.” It usually is meant to include the
classically older media like out-of-print books, music
or photographs with little-to-no contact information available. Long duration of copyright protection puts limits on Archive holders (such as the BBC), museums,
galleries and libraries who become restricted by law from publishing orphan
works, digitizing them and making them accessible due to risk of potential infringement claims from a
reappearing “owner” . This has resulted
in many orphan works remaining unused in archives and a massive resource &
administrative drain for public sector. Museums
often have to exclude historically relevant photographs from public display
because they don’t know who took them or where they are from.
To understand clearly, let us consider a situation where you were
say making a project on maybe the theories of Galileo or maybe a study on the interesting number of corgis, (breed
of dogs), that the queen owns, or maybe
a study on the unpublished works of
Mozart. Traversing the internet, you happen to find a bunch of images and music
which you would want to use but you have no clue about their origin, can you
use them? It would be copyright violation at present. This is the problem that
Britain is trying to solve. These are
the type of works that are now covered by the Enterprise and
Regulatory Reform Act, which will allow usage of such works after following a
set of regulations.
2. What happens when the
author is identified or makes a claim in relation to an orphan work? - The Act has certain safeguards for authors such as the requirement of
a ‘diligent search’ and a timeframe (probably likely to be around 5-6 years)
for authors to come forward to claim deposited license fees for use of their
previously-orphaned works.
3. Legal issues: It is highly unlikely images of our children on face book will be
used commercially. Most publishers will not risk using unreleased images of
minors.
4. Large content: Companies don’t want legal
headaches anymore than you do and are unlikely to intentionally use works that someone might sue over.
Given the huge body of work, they could find (or create) stuff for advertising
purposes.
THE BAD:
1. Increasing
orphans: Today’s face
book post is tomorrow’s orphan work. So
now, if anyone performs a "diligent search" and fails to identify the
creator of the orphaned work, he is free to use it without fear of a copyright
infringement suit. Practically speaking, anybody can use work and then can
legally claim, “Oh I’m sorry, I did not know they were yours”. Just how
diligently does a company have to search before it can claim a work is
orphaned?
2. Mobility: Cell phones and pocket cameras are more common now where people
automatically upload the image without inserting copyright information.
3. Worldwide
implications: If a company
in the UK finds the orphan work, it can easily gain a license to use it because
of its orphaned nature. Although this is a UK bill, it will affect work done by
anyone anywhere in the world –if they can’t find the image’s copyright holder,
they have no way of knowing if the image is from the UK or elsewhere, just that
it is an orphan, hence requiring neither credit nor compensation.
4. Commercial exploitation: of work without
due credit or the fear of being taken to court, should the owner ever come to
light and make a claim at some point in the future.
5.
Costs: A picture taken
might be worth some value, but could be less than what it would cost in terms
of time and effort to register it.
6.
Fraud: this was an interesting concept I found while going through reader’s
comments:
a) Locate an
image X
b) Strip the image of metadata and repost it at Y
c) “discover” image at Y lacking copyright information
d) " diligently search" based on image from Y
e) declare image from Y as 'orphaned'…
b) Strip the image of metadata and repost it at Y
c) “discover” image at Y lacking copyright information
d) " diligently search" based on image from Y
e) declare image from Y as 'orphaned'…
7. Watermarks are a good idea if
placed at the centre of the image, thus destroying it. If placed at the side, it
can be easily cropped off on the sides without destroying the image. Many
a time, the cropped version is “adequate” for most intents and purposes.
HOW DOES IT AFFECT SECOND LIFE?
Real money
transactions are made by many “SLers” who sell virtual clothing, houses, and
much more. For many of us, second life is a second home. Once 3- D immersion
technology becomes mainstream, we may even encounter situations having real
world implications. It’s getting more real all the time in the virtual world. Images,
music and photography are an all-in-one part in SL. The infamous CopyBot, which
allowed copying virtual goods without paying for them, comes to mind. Linden
Lab banned the program but that did not deter the ones who were determined from
using it. Filing abuse reports to Linden Lab and suing copiers under the
Digital Millennium Copyright Act has become the norm. But the fact that the CopyBot
is used under different guises is still a fact. This is an analogy to the
“Instagram Act” which existing or not existing, protection of our stuff that we
put on the internet has to ruled by our own common sense. The act itself does
not make radical changes as is being implicated.
INTERVIEW
1.
On interviewing some of
the second life denizens, I got varied responses… Mostly it seems to be an
unknown act and the main reason being:
Orchids: have you heard about the Instagram act?
Anonymous:
No. Got a link for me to read about it?
Orchids: gives link
Anonymous: It really doesn't apply to me. To comment on something that is currently
UK-only and image-only …
I truly hope
this detailed article clears out the doubts that many of us are having with
regard to this act. A person in America or Russia or even in the Pacific islands is
affected by this act. Your image/music/ work can be stripped of metadata and
used or if you place work on the internet without identifying information that
could also be used.
2.
However a “photographer in RL and Dj in SL”
gave me answers in a way that made “my” understanding of the act better. I
thank you!
Orchids: Thanks for replying :)... I wanted your
opinion on the “Instagram act”... have you heard of it?
Anonymous: I've not heard of this act
Orchids: that’s
okay... I’ll tell you the details and give you the link...
Anonymous :): kk….
Reads act….
Anonymous: not really
major as that kind of can already happen as it is; so the act just now gives it
a name
Orchids: is it okay if I quote you in there?
Anonymous: um... I guess,
but could it stay anonymous?
Orchids:
sure :)... that is totally your choice...
Anonymous: sounds good. I just don't want random IM’s after it lol.
Orchids:
how would such an act affect your photography?
It wouldn’t make a difference to you?
Anonymous: I do have a
few pics on FB (face book) but no-where else, so I'm not too sure yet. I didn't
plan on posting anything official till I managed to make a “LOGO” of sorts.
Orchids: it says that the FB photos which you haven’t
sorta owned can be used by corporations. Does it not affect our privacy?
Anonymous: not
really as FB is a free site that anyone can find … so it’s more of a post at
your own risk there.
Orchids: you do have a point there... so, it is
really our job to properly put our stuff up on the web...
Anonymous: true
Orchids: thank you again... :)...
Anonymous: good luck
and thank you for understanding my need to keep my name off the quotes :)
Orchids: you are generously giving me a copyright
on your words :))…. so thank you :p
Anonymous: what?
Anonymous: oh by letting
you quote me without a name there *face palms*
Orchids: it’s
because of sweet people like you that the world is still sane... otherwise we
would all be at the hands of lawyers
Anonymous:
:)...
3.
A builder’s viewpoint:
Orchids: I’m writing on the so called “Instagram
act"
Pameola: I read a
little about that... seems a UK law could take over the world... The law itself is one thing... How it will be
interpreted, applied, and abused...
is another thing :P
Orchids: true! Good idea. I could plagiarize that
sentence for the article. :))
Pameola: LOL. I will sue under the copyright laws :P
Pameola: "The
devil is in the details" I bet. You
still should go through the "due diligence" search process...I wonder
how many "diligent searches" for the
rightful owner of a work will be made
Orchids: and plagiarizing is rampant even now... but
this act gives us a blanket to hide under.
Pameola... and so is the
theft of pictures / graphics from the web etc...
Pameola: Then again,
it will boil down to who has enough money to take someone else to court
Orchids: Thank you much for giving me the ideas.
Pameola: You are very
welcome.
WHAT YOU CAN DO
1. Don’t post any work online, ever……..and if that isn’t an option--
2. Watermark it: start watermarking images or at the very least add some metadata to
your files identifying you as copyright holder.
3. Name it: Your best game plan against your work being used without your
permission is what you should be doing to protect your stuff anyway – put your
name on it, and if you upload it to Flickr, Instagram, Face book or Google
Plus, make sure that the metadata and description includes your name and
your statement of ownership. This is not a guarantee your images
won’t be orphaned as metadata is often stripped out by image hosting sites.
4. Register it: Photographers and artists can register each individual work with the U.S. Copyright Office (5) or the PLUS Registry in the U.K. (6) to ensure that they are
identifiable. This way, even if someone could strip identifying information out
of an image and repost it online, and you can always come forward to claim your
work. However the cost and time required to register each individual work as
prohibitive, but at the moment, there aren’t many options.
5. Google it: Google reverse
image (C)
search includes the option of dragging and dropping an image into the search
bar. If you want protect your image, make it easy for “them” to find you. That
way if you find an entity using your image without permission, you can prove
that the very minimum of effort will establish you as the owner. Which, again,
you should be doing anyway. . .
6. Follow it: Monitor Google for your
copyrighted works. You can detect infringing uses, and assert your rights
against the infringing party
HOW TO AVOID FALLING FOUL
OF THE ‘INSTAGRAM ACT’
·
One of the first responses an infringer will have
to a copyright infringement claim is that he didn’t know that he was
infringing. The “innocent infringement defense” states in part: (8)
“In a
case where the infringer sustains the burden of proving, and the court
finds, that such infringer was not aware and had no reason to believe
that his or her acts constituted an infringement of copyright, the court
in its discretion may reduce the award of statutory damages to a sum of
not less than $200.”
But it’s not an easy process in the court to
prove innocent infringement. As one court explained: person doesn’t have to
have the “specific intent” to violate the copyright protection to be liable for
infringement.
·
And even if the
infringement is innocent, the infringer is still liable under a strict
liability rule: “Innocent intent should no more constitute a
defense in an infringement action than in the case of conversion of tangible
personality.”
A Review of the article http://www.theregister.co.uk/2013/04/29/err_act_landgrab/
End Thoughts:
1. When there are are two points of view, the truth is always somewhere
in-between.
2.
Protect
yourself to the extent you can. Wouldn’t you do that anyway?
3.
As the WWII
slogan says “Keep calm and carry on” (D)
8. http://www.law.cornell.edu/uscode/text/17/504
Interesting... O; Hmmm.
ReplyDelete@ Anonymous.. thank you for taking time out to read. I hope to take "interesting" in a positive sense :)...
Delete