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Commercializing Photographic Commercializing Photographic Works OnlineWorks Online
Lucinda Jones
WIPO-CAPS
Workshop on Management of
Intellectual Property for Photographers
Beijing
December 8-9, 2005
OverviewOverview
• Copyright online in China• Should you go online? • How to go online• Technical protection• Legal issues • Decisions..
China Copyright Law - InternetChina Copyright Law - Internet
Amendments in 2001, Chinese Copyright Law applies to copyright on the Internet– holds violators responsible for copying of online art (photos)holds violators responsible for copying of online art (photos)– future joining WIPO Copyright Treaty and Phonograms and future joining WIPO Copyright Treaty and Phonograms and
Performances Treaty ? (give authors the exlusive right to authorize Performances Treaty ? (give authors the exlusive right to authorize communication of their works to the public by any means, including communication of their works to the public by any means, including the Internet)the Internet)
From May 2005, Internet service providers (ISPs) can be notified and asked to take down infringing copyright photographs– ““notice and takedown”notice and takedown”– ISPs must remove the infringing content - if they know but do not ISPs must remove the infringing content - if they know but do not
remove the illegal content, income is confiscated, and fines imposedremove the illegal content, income is confiscated, and fines imposed
Should photographers go online?Should photographers go online?
Should you put your photographs online?
– Depends on purposeDepends on purpose personal use personal use to share without restriction to share without restriction commercial use - depends commercial use - depends
– No 100% protectionNo 100% protection
– Only sure protection is not to put your photos online!Only sure protection is not to put your photos online!
Opportunities & risksOpportunities & risks
Opportunities Global marketplace more than 1/2 billion people onlineGlobal marketplace more than 1/2 billion people online China - more than 100 million online users (second largest in China - more than 100 million online users (second largest in
world, still only 8% of population)world, still only 8% of population) Risks
commercial infringement/copying - “piracy”commercial infringement/copying - “piracy” massive instant copying - peer-to-peer (P2P) file sharingmassive instant copying - peer-to-peer (P2P) file sharing online users little knowledge of copyrightonline users little knowledge of copyright damage to reputation by misuse, alterationdamage to reputation by misuse, alteration legal liability in foreign jurisdictionslegal liability in foreign jurisdictions costs may outweigh benefitscosts may outweigh benefits
How to go onlineHow to go online
Register a domain name & set up a website (.com, .biz, .cn)
www.imagesofchina.comwww.imagesofchina.com
www.imagesofchina.cnwww.imagesofchina.cn
– user-friendlyuser-friendly
– correspond to your trademarkcorrespond to your trademark
– ensure you don’t infringe another person’s trademarkensure you don’t infringe another person’s trademark
– WIPO Arbitration & Mediation Center - Trademark WIPO Arbitration & Mediation Center - Trademark Database PortalDatabase Portal
http://arbiter.wipo.int/trademark/index.htmlhttp://arbiter.wipo.int/trademark/index.html
Registrar for .CN - China Internet Network Information CenterRegistrar for .CN - China Internet Network Information Center
See if it’s available - www.whois.comSee if it’s available - www.whois.com
How to go onlineHow to go online
Set up a website
– take care with agreement with website developertake care with agreement with website developer
– decide who will own the copyright in the website design decide who will own the copyright in the website design
– decide target audience (local, national, international)decide target audience (local, national, international)
– decide purpose - personal sharing, advertising and decide purpose - personal sharing, advertising and marketing, commercial salesmarketing, commercial sales
– choose technical tools (software, DRM)choose technical tools (software, DRM)
– decide delivery method for goods - postal physical decide delivery method for goods - postal physical delivery or networked digital deliverydelivery or networked digital delivery
– ongoing management and monitoringongoing management and monitoring
Technical protectionTechnical protection
Digital rights management (DRM)
(1) identification & description of IP rights relating to the photograph (“metadata”)
(2) technical enforcement of conditions of use (“digital rights management”)
Micro-payment mechanisms Technological protection measures
Technical protectionTechnical protection Ways to protect your photos online
– Control access to your website by passwords or less publicity (but losers Control access to your website by passwords or less publicity (but losers viewers and customers)viewers and customers)
– Disable users’ right-click to stop ‘save as’ (annoying, and can be Disable users’ right-click to stop ‘save as’ (annoying, and can be circumvented)circumvented)
– Encrypt the website or prevent downloading (software expense and may Encrypt the website or prevent downloading (software expense and may restrict viewing)restrict viewing)
– Visible watermarking (can be removed by cropping, and interferes with Visible watermarking (can be removed by cropping, and interferes with image)image)
– Digital watermarking (can be tracked, may be removable) e.g., iWatermark Digital watermarking (can be tracked, may be removable) e.g., iWatermark softwaresoftware
– Low resolution or small (thumbnail) images (can spoil appearance of website)Low resolution or small (thumbnail) images (can spoil appearance of website)
– Web spider programs - track images via web browsersWeb spider programs - track images via web browsers
E.g., www.WatermarkFactory.comE.g., www.WatermarkFactory.com
E.g., www.Photomark.bizE.g., www.Photomark.biz
Technical protectionTechnical protection
Electronic rights management Rights management databases Collective management organizations Development of standard identifiers to attach to photos
permanently
– e.g., Digital Object Identifier (www.doi.org)e.g., Digital Object Identifier (www.doi.org)
Legal IssuesLegal Issues
Jurisdiction - application of laws IP & commercial laws are territorial Internet is global - your website is potentially accessible in
hundreds of legal jurisdictions You could infringe other laws - and your photos could be
copied in other jurisdictions (legal action in foreign courts) Copyright protection is available in most countries - and
granted to foreign artists under international treaties
Legal IssuesLegal Issues
Jurisdiction - application of laws Precautions
– language (Chinese or English?)language (Chinese or English?)
– currency (yuan or dollars?)currency (yuan or dollars?)
– disclaimer (This site is intended for customers resident disclaimer (This site is intended for customers resident in China only…)in China only…)
– choose law of contractchoose law of contract
– technical protection measurestechnical protection measures
Legal IssuesLegal Issues
Digital images - digital manipulation Enables:
– removal of minor flaws (scratches, dust, red-eyes ..)removal of minor flaws (scratches, dust, red-eyes ..)
– change brightness, contrastchange brightness, contrast
– burning or dodging (darken, lighten)burning or dodging (darken, lighten)
– cropping an imagecropping an image
– coloring, including colorization of B&Wcoloring, including colorization of B&W
– reversing an imagereversing an image
– adding, moving or deleting objects adding, moving or deleting objects e.g., Adobe Photoshop, Corel Painter, GIMP..
Legal Issues - digital images..Legal Issues - digital images.. Raises legal issues:
– copyright infringement (derivative works) copyright infringement (derivative works) is the manipulated image an original work or is it a mere copy of is the manipulated image an original work or is it a mere copy of
the photograph?the photograph?– moral rights infringement (integrity) moral rights infringement (integrity) – defamation (e.g., use in inappropriate context) defamation (e.g., use in inappropriate context) – misrepresentation (passing off)misrepresentation (passing off)– parody (exception to copyright under some laws)parody (exception to copyright under some laws)– breach of contractual termsbreach of contractual terms
Raises ethical issues:– disclosure to public (captions)disclosure to public (captions)– disclaimerdisclaimer
Legal IssuesLegal Issues Fair use copying
– for personal home pagefor personal home page Temporary copying Search results can include thumbnail photographs
– e.g., iWatermark software can create thumbnails of your photos, low e.g., iWatermark software can create thumbnails of your photos, low resolution (prevents copying)resolution (prevents copying)
– each thumbnail shown in search results is a copy of another each thumbnail shown in search results is a copy of another photograph - potentially copyright infringementphotograph - potentially copyright infringement
Temporary copies - cached in a computer memory– each temporary copy is a copy under copyrighteach temporary copy is a copy under copyright– legislation usually makes exception from infringement for such legislation usually makes exception from infringement for such
copies if transient incidentalcopies if transient incidental
Legal IssuesLegal Issues
Hypertext linking
– program command telling the Web browser to go to program command telling the Web browser to go to another online document, or part of itanother online document, or part of it
– can amount to copyright infringement or unfair practices can amount to copyright infringement or unfair practices in some cases:in some cases:
– surface linking - links to first/home page of another site surface linking - links to first/home page of another site – deep linking - bypasses home page and links to interior deep linking - bypasses home page and links to interior
page page – framing and inline linking - results of external site copied framing and inline linking - results of external site copied
or displayed in frame/window of original site or displayed in frame/window of original site
The decision to go onlineThe decision to go online
Decide purpose Decide audience Register domain name, create website Implement technical protections Know what laws apply Know what ethical issues apply Seek advice (colleagues, professional societies, lawyers) Have a go..
