Some say the whole idea of setting up
image registries is a waste of time because everyone will continue to go to Google, Bing and Yahoo and grab anything they find believing it is their right.
I believe large segments of the population wants to do the right thing if:
1 - doing the right thing is relatively easy in terms of time and effort needed to accomplish the task,
2 - the costs to use the work are reasonable,
3 – there is a reasonably high risk of getting caught, if they make and unauthorized use, and
4 – the penalties, once caught, are clear cut; high enough to be uncomfortable, but not so high that it makes it worth hiring lawyers to try to avoid paying anything.
The first principle should be that Image Creators have the right to be consulted about any use of their work, the right to be compensated for such a use and the right to establish the price for such uses. Basically copyright laws insure these rights with a “Fair Use” exception.
Let Me Examine Each Point
1 - Technology has advanced to the point where it is possible to do a visual search of a large number of image registries in seconds. Check out the
Copyright Hub and do a "Search by image" to see how image users could easily determine if permission is necessary to use an image and where to go to get that permission. Currently over 150 million images can be found on the registries accessed by the Copyright Hub.
The main problem with this Hub is that so far no one has figured out how to broadly promote it or fund its operation long term. To really be effective all types of image users must be made aware of such a Hub’s existence and where they can go to determine if permission is needed to use a particular image.
I have
argued that Google, Bing, Yahoo, and maybe other International search engines that are already widely used by all types of image users would make better Hubs for such searches. These organizations currently offer visual search of the whole web. They could easily offer an additional option that only searches qualified registries where all the images in each registry require some type of permission for use.
Such Hubs would also provide a lot of useful information to the search engine operators. Assuming adequate penalties for unauthorized use are in place, people who find an image they want to use for commercial purposes would recognize that it is in their best interest to determine if the image needs to be licensed before they grab and use it. Being able to identify those who might have a commercial interest in using images could more than justify the cost of operating the Hubs.
Private non-profit and even for-profit organizations should be allowed to establish registries that would be searched by the Hubs. Each would need to meet certain basic requirements established by the Hubs.
Finally, if Google, Bing and Yahoo are out there competing against a hub that is trying to encourage users to respect copyright and private ownership the chances of any non-profit copyright hub being widely used by the broad community of Internet users is greatly diminished.
2 – Current microstock prices for the most part are very reasonable for professional users, even for the smallest business. If users cannot afford even microstock prices, and want to avoid the risk of having to pay a penalty, then they should spend a little more time looking for one of the millions of free images available on the Internet that might work for their purposes.
There are already sites where people can search for Creative Commons licensed images that allow certain types of free use.
Some creators feel that anyone wanting to use one of their images should be willing to pay a much higher price for the privilege. These creators should have the right to establish the price and refuse permission to use their work if the user will not agree to their terms. On the other hand, given the current competitive landscape, some of these creators may discover that they need to lower their prices for Internet use significantly if they hope to license any uses to their images at all.
3 – Given the advancements in visual search technology there is already a reasonably high risk that any use will be discovered. As more and more image registries are developed it will become very likely that any use on the Internet – if the image remains on the site for any length of time – will be discovered.
The difficulty is not in finding image uses, but in determining whether they were legally licensed or not. Many photographers license their images through multiple agencies. Often it can be six months, or longer, after an image is licensed before the photographer receives notification of a use. No agency wants to contact potential infringers unless they are sure they have access to all the legitimate licenses to the image.
In many cases the agency or distributor that licenses a use does not supply the customer’s name to the creator. When graphic designers license uses they are often working for another entity on whose web site the image will actually appear. All these issues make it very difficult to determine whether an image has been legally licensed, or not.
Some creators who are having the greatest success in identifying infringements are those who only license through their own web site, or who have images on Flickr and handles all the negotiations with customers themselves. As it becomes easier to track unauthorized uses more photographers may decide that it is better to handle all negotiations themselves, or to have a single representative (with no sub-distributors) who handles all negotiations for them.
4 – There must be a penalty for unauthorized use that is more than the user would have had to pay had they licensed the use properly, but is also reasonable. The penalty must also cover the creator’s overhead of identifying and tracking infringers. It would help if there could be a clear formula for calculating small claims damages.
Right now, in the U.S., there are potentially very high penalties, but litigating in Federal Court is very costly, involves a high degree of risk that it will not be successful, and has the potential of being dragged out forever in appeals. For most whose work has been infringed it is not a satisfactory solution. Most infringements are for a single image and for very small uses. It seldom makes sense to pursue such cases in Federal Court.
Last year in the UK a
small claims process was instituted last year. In the U.S. a small claims process has been under discussion for about a decade and may be getting closer to some type of action in the U.S. Congress.
While the UK system is currently under utilized photographer David Hoffman reports that one of the benefits has been that the mere existence of the IPEC small claims track means that many infringers, when approached for a settlement, now pay up before any papers are filed. They are aware that they have no defense, that going to court will only increase their costs and that the IP owner now has a practical remedy that they are likely to use if required.
For all these reasons, I think a system that makes it easier for consumers to quickly determine if an image needs to be licensed and who to contact to license the rights; along with reasonable penalties for infringement and a Small Claims system would greatly improve copyright protection for U.S. image creators.