In November 2010 the UK government called for an independent review of the Intellectual Property laws and practices and assigned Professor Ian Hargreaves and a panel of experts to prepare a report. The report, submitted in May 2011, made 10 recommendations designed to ensure that the UK has an IP framework “best suited to supporting innovation and promoting economic growth in the digital age.”
One of the proposals was to create a
Digital Copyright Exchange (DCE) that would promote innovative uses of digital content and make it easier to acquire the necessary licenses from rightsholders. The
UK Publishers Association (PA) supports this proposal which is slowly working its way through the legislative system.
There are two difficulties in developing such legislation. (1) It must deal with all media types (moving pictures, still pictures, illustration, text, music, mixed media) and all other types of copyrightable materials. (2) It is focused on serving the needs of one country not customers worldwide.
Alternative Approach
I would like to suggest a slightly different way for photographers to address the problem. I’ll call my database proposal Images Under Copyright (IUC) to avoid confusion with the DCE. First, the IUC would have a narrower focus. It would just deal with still images and illustrations. Other content creators have different problems and may need a different approach to solving them. In addition, the solution must be international. It must accept content from creators all over the world. There must be a single web site where anyone from any country can go to determine who controls the licensing of a particular image.
A big part of the image creator’s problem is that there is no way for potential users to easily determine if an image needs to be licensed, or who to contact to properly license its use. Copyright registration in the U.S. does not solve this problem, it only makes it easier for creators to pursue legal action once they have discovered an unauthorized use of their image.
Step 1 – There must be an inexpensive piece of software that creators can use to personally fingerprint their images. Those who are interested in controlling the use of, or license rights to, their images would need to purchase this software and fingerprint their own images.
Step 2 – Someone would need to create and manage the Images Under Copyright (IUC) database. Image creators must be able to upload fingerprints of their images for a modest fee. It must also be possible for those who want to use images to search this site free of charge to determine if the image they are interested in using is in the database.
Step 3 – When someone finds an image on the Internet that they would like to use they would upload a copy of that image to a site like TinEye.com (http://www.tineye.com/) or Google Images (http://images.google.com/). This site would instantaneously fingerprint the uploaded image and compare it to the IUC database. If the image is in the database the potential user would receive information about where to go to license rights to use it along with the date the fingerprint was loaded into the system. Those who find an image they want to use in printed material could scan it and upload it.
Instead of searching the entire Internet for every use of that image the search software would only search the IUC database. At the time of upload creators could also provide some basic licensing information such as: “Creative Commons licensing permitted”, ”Personal non-commercial use allowed”, “Creator does not permit any use of this image” or “Call to negotiate rights.”
Step 4 – Once an image fingerprint has been placed in the database, if someone uses the image without proper licensing any time after the date of upload that would be prima fascie evidence in a court of law that the use was a violation of copyright.
Step 5 – The burden to determine if the image needs to be licensed is placed squarely on the potential user. The process of checking the database would take no more than a few minutes. If an image isn’t in the database it still may need to be licensed, but the fact that the user checked the database is certainly a defense if it is later discovered that the image was used without a proper license.
Issues To Overcome
1 – Cost. In the U.S. creators are already spending a great deal of money to register their images with the U.S. copyright office. Assuming that the U.S. laws were changed to eliminate the requirement for registration in order to bring legal action, copyright registration would no longer be necessary and the IUC system would probably be simpler and less expensive. Given technological advancements the U.S. copyright registration system is totally antiquated in terms of actually protecting visual content creators or discouraging unauthorized use.
The money currently spent to register copyrights could go to paying the cost of operating the online database. In addition, the creator’s share of monies being collected by Collecting Societies around the world for the “copying of non-title-specific copyrighted works” could be directed to support the IUC database.
Companies like Google or Amazon could easily establish such a database and offer it as a service to their customers.
2 – Multiple uploads of the same image by different distributors. The date of first upload should rule. If someone tries to upload a fingerprint of an image that is already in the database the party trying to make the upload should be notified that his upload is not accepted. The party who made the initial upload should also be notified and given the contact information of the person who tried to make the second upload. Then both parties can contact each other to determine who should be handling future licensing.
There should also be a password system that allows the party who uploaded a fingerprint to remove it from the database. In this way a new licensor can be assigned to an image. There should only be one primary licensor, worldwide, of each unique image.
3 – Unauthorized people uploading images that they have no rights to license could be a problem. Item 2 should go a long way to protect against this. If someone who is not the creator, or his representative, uploads an image and at a later date the creator decides to upload the same image, the creator, at least, will be given the contact information of the person who made the initial upload. The creator may then have to pursue legal action to prove that he, in fact, did create the image and to recover any benefit the unauthorized person received from falsely claiming to own the image. The fact that a person’s contact information can be exposed should be a sufficient deterrent in most cases. There should also be something in the terms of the IUC that allows for the removal of all images belonging to a particular “creator” if it is found that the creator has falsely claimed ownership, or the right to represent, certain images.
4 – This system may not simplify the licensing process to the degree some customer would like. They may still need to negotiate and in some cases they may discover that they can not afford to use the image, or that or some other reason are not allowed to legally use it. The whole copyright system is based on the principle that the creator has the right to determine how his images will be used and an acceptable fee for such usage. Under copyright law the customer does not have the right to use any image they choose, in any way they choose, regardless of the creators wishes.
5 – In some cases individual creators will want different distributors to handle licensing for them in different territories. There can only be one central point of contact (usually the creator) for each image. If the creator then wants to refer a customer to someone else to handle the actual licensing, that’s fine. There will be no pricing information on the IUC, only information about where to go to get a price.
6 – In order for this system to work in the U.S. without the necessity to also register with the Copyright Office (a double burden) the U.S. Congress would have to make some changes in the law. Getting the U.S. Congress to do anything may be impossible. However, it would certainly reduce the cost of unnecessary government which most people say they want. If such a database existed, it might be easier to convince governments to take action.
7 – Large image distributors or operators of large databases like Flickr could offer a service to their contributors of uploading fingerprints of their image to the IUC.
Rather than waiting for governments to dictate something trade associations, large image distributors and individual photographers need to band together and create a system that will work for the photographic community and their customers. All the necessary elements exist. It just takes someone to lead the initiative. Chances are if it is invented by photographers it will serve the photographic community better than if it is invented by governments.