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Synopsis -
The general perception of "Public Domain" is that if something is
available unfettered on the internet, it's free and can be used however
one chooses.
- Most people put their photos online for free, and they are
unaware when others use their photos. Nor do they care if they find out.
In fact, they're often honored.
- Virtually no common consumer is paid when others use their images in
ways that should, technically, require their permission.
- When hundreds of millions of people engage in these actions, the
natural tendency is to believe that copyright laws don't apply. In fact,
the perception is that these actions "define" the modern understanding
of public domain.
- The consequence is that the investment community is retisant to
participate in a wide-spread infrastructure that would create licensing
mechanisms for photos on the scale that exists for music.
- This then leads to a
great volume of photos that are left both unmonitored and unmonetized,
yet are still used in ways that should require consent from copyright
holders.
- The lack of understanding of copyright and Public Domain
means that a great number of images are infringed, intentionally or
otherwise.
- Given that, the stage is set for malicious players to
exploit these conditions by fraudulently misrepresenting the "status"
and/or the "owner" of an image. This can be either to entrap infringers
(by suing those who publish such works), or to infringe upon works and
defending claims of infringement by saying that the works were declared
"Public Domain."
- Fraudulent misrepresentation of copyright status
is not only profitable, but it's the type of scheme that can be easily
scaled up due to the enormity of images on the internet and the widespread
ignorance and apathy the public have to the problem.
- The economic
ramifications have lead to a stealth kleptocracy that few people are
aware of, all within a sub-economy that few participate in.
- This
creates a negative economic feedback loop that perpetuates the problem,
further distancing any possible interest in solving it.
- The solution
is not a matter of the law, nor awareness of the law, nor understanding
of the law. It lies in the underlying mechanisms and incentive programs
defined by the government that would encourage public participation,
and would stimulate investment in the infrastructure that would allow
fair-markets to compete lawfully.
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In part one of this two-part series, I discussed how the term,
"Public Domain" is finding its way into the mainstream press. But the
topic is a bit obtuse, and press coverage is frequently biased and
misinformed.
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One of the unintended consequences of this is an erosion of people's
general understanding of Public Domain, and by extension, copyright
itself. This has had important ramifications on economic and legal events
affecting all industries related to intellectual property. It might seem
like a stretch to connect the dots in such a dramatic way; this article
walks through those connections, beginning with an overview of how the
public behaves today, and ending with proposed solutions to the problem.
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As will be illustrated by examples and reports below, the vernacular use
of the term "Public Domain" has become synonymous with "publicly
available." Most people think that if they can copy stuff from the
internet in an unfettered fashion, there's an implicit "grant of use"
permitted by the author. This, unlike music files, which most people know
as being illegal to download without payment, even though some do it
anyway. The perception of photos is perceived quite differently; most are
surprised to learn that images carry the exact same copyright restrictions
and protections as music does. After all, how can a snapshot taken by an
infant while he dunked his father's expensive digital camera into the fish
tank have the same legal protection as a newly released song by The
Rolling Stones?
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Oddly enough, they have identical protections in the eyes of basic
copyright law. Of course, few people know this. In fact, most believe that
unless expressly stated otherwise, photos found on the net are free to use
in any manner one chooses. An example of this is reflected in this New
York Times article called, Flickr as an Interior Decorating Tool.
Here,
the author discussed how she likes to go to Flickr and print out her
favorite photos to decorate her walls. (Hint: this is technically a form
of copyright infringement.) The author's act is more than just reflective
of the general public's misunderstanding of how copyright applies to
photography, but the article perpetuates these misgivings and helps
further establish its acceptability—the social norm.
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A UK study further
illustrates this through empirical research, drawing the same conclusions.
This study became itself a topic in the blog, Plagiarism Today, which concluded that if copyright is to
be better understood, "it needs to be built on the back of a robust
understanding of common law."
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That conclusion, however, misses an important and critical truism about
societal behaviors: people don't comply with most civil laws because they
are aware of them or even understand them. They comply because compliance
is often "built into the system" by default. There are a variety of
mechanisms built into day-to-day life that make legal behaviors not only
easy, but second-nature, which are reinforced by social and economic
"reminders."
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A current example of this can be found in how people deal with online
music. When Napster was first introduced, people infringed on music
universally, all but ignoring cries of foul by the recording industry.
When the RIAA started suing individuals for downloading music, people's
behaviors didn't change; instead, they viewed the music industry with
disdain.
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It was only when music labels decided a different tack did people's
behaviors begin to change: the companies cooperated with device makers to
create simple, convenient and automated mechanisms for users to purchase
and play music seamlessly and instantly. This was the first event that
slowed the upward trend of music piracy, and an increased the revenue
generated from online music sales.
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The lesson is that copyright compliance it's not about cost, and it's not
about legal awareness or education (or even ethics). For consumers, it's
about convenience. Once this lesson was learned, the next
experiment took place: the removal of copyright protection schemes on
songs, allowing people to use their existing purchases on other devices
they own. By further assisting users in enhancing the "music ownership
experience," the music companies were rewarded by another increase in
purchasing trends.
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It's very true that law plays a pivotal role here, but it's the larger
companies that were driven more by the threats from one another that
stimulated the development of those mechanisms that promoted copyright
compliance by the masses.
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What does any of this have to do with Public Domain? Well, people steal
(even inadvertently) when the system doesn't provide mechanisms for easy
compliance. The perception that most photography is in the Public Domain
is largely because there are no industries—and therefore, no
mechanisms—available to the general public of consumers to comply with
photo copyrights. With no infrastructure, there's no economy.
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At least, not legitimate economy. The reality is that photography
is protected, and it does have value, and infringements
are lucrative. If no one's there to claim any of these benefits
legitimately, it seeds the ground for bad actors to come in.
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The Dots that Lead to Trouble: Corporate Infringement
Though
the music and movie industry still suffers from stolen works, the
proportion of images that are "stolen" (to those that are legitimately
licensed) is significantly higher, and is on an upward trend. This, even
though the copyright protections for music and photos are identical. But
what makes this significantly worse is that, unlike music that's stolen by
individuals, photos are stolen by corporations. This type of infringement
is a double-whammy because corporate licensing of photos on a per-unit
basis can be in the hundreds to the thousands of dollars (compared to a
$.99 song); and because the infringement claims against a company can be
in the tens of thousands of dollars.
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When no one but malicious players are aware of this, trouble is around the
corner.
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The dots that lead up to all this begins with the fact that photo
copyrights are owned by individuals, not a small cooperative of
large companies that can collaborate on industry-wide practices (i.e.,
music) and can exert pressure to preserve copyright compliance.
Individuals have legal leverage only in protecting themselves, which they
rarely do because of their own misunderstanding of copyright and of Public
Domain.
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Next is the perceived value of photos: most consumers use them for
utilitarian purposes (socializing, personal photo albums, documenting
inventory, etc.), and photos are taken by any idiot with a camera, not
just professionals, like musicians are with music.
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The combined lack of perceived value and lack of preventative action then
leads to the application of this understanding from one's personal life to
one's professional life. That is, consumers also work at companies, and
their behaviors at home translate to their job duties. If they use other
people's photos (and allow others to use theirs) in their personal life,
they behave similarly when using photos in the documents they produce at
work.
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By comparison, there are few if any copyright infringement cases against
corporate use of music. Obviously. Everyone knows music cannot be
used in commercial ways without seeking permission from the record label.
You never hear of a low-paid intern downloading a song and embedding it in
a car ad that's broadcast on network television. Even a consumer that
illegally downloads songs from the internet knows better than to do that.
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The same cannot be said of photography—studies consistently show that
5-6% of photos sold by stock photo agencies are infringed upon by
corporations for ads in high-profile magazine, newspapers and the web.
Since stock photo agencies (who do go after infringers) represent
only about 15% of all licensed images, one can assume that the ratio of
photos stolen from non-professionals is much higher, if only for the fact
that most online photos have no preventative measures to stop
infringements like stock agencies have.
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Even when stock agencies sue, it's not educating society with massively
sweeping information campaigns. By and large, people still infringe
photos because it is, at worst, considered a cultural faux pas—a
social misdemeanor. Akin to wearing white after Labor Day.
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A recent story highlighting this involved a Missouri family whose photo became a billboard ad in the
Czech Republic. The family learned about the use of their picture only
because of a random coincidence—a college friend in the Czech Republic
happened to see the sign. What makes this story so revealing is that it
illustrates just how unusual it is that the family found out.
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While it's a nice, gentle piece that ran in the "lifestyle" section of
newspapers (because no one filed a copyright infringement claim, or sued
for violating publicity laws), this might not have been treated so lightly
had it been a stolen song. It'd have been in the business section, and
more serious analysts would have been doing math to figure out what the
impact might be on record industry. The mild news coverage of the stolen
photo had a subtle effect on perpetuating the general perception
that there's no serious harm done in using someone's photos found from the
net.
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The last dot in the sequence is the one that completes the picture: enter
the con artist. It doesn't take a genius to connect the dots to see that
all such copyright violations really are eligible for hefty damage awards,
and no one's there to claim them. Because most people don't think there's
value in their photos, and the fact that there are billions of photos on
the internet, thieves can causally peruse the web in search of photos, and
users of photos. Given that the infringement rates are so high, and
given that both users and publishers of photos are so poorly aware of
copyright, the cherries are ripe for picking.
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Crafting a solution to the problem is not just a matter of erasing the
dots, nor applying the law better, or making people more aware or
educated. It's about instituting mechanisms that allow the free market to
provide methods and incentives for people to participate in the system,
both as buyers and sellers of this highly under-monetized (and overly
exploited) copyrightable work.
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We begin with the basics. The Berne Convention for the
Protection of Literary and Artistic Works states that a work is
automatically copyrighted the moment it is produced in a fixed and
tangible form. For photography, it means that, the moment the shutter
button is released, the photographer automatically becomes the copyright
holder. No other action is required—no registration, nothing.
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Some people are aware of "copyright registration", but erroneously believe
that such registration is required to get protection. It's not.
Registration does provide extra levels of protection by allowing
copyright holders to receive higher damage awards—called "statutory
damages"—but this is entirely separate from basic copyright law and the
protection it provides. Yet, what copyright registration does is advance
people's understanding that copyright is important and valuable. It'll be
important to keep this in mind while crafting solutions.
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In any event, all photographs are copyrighted (by definition) the
moment the pictures are taken. For a work to not be copyrighted is
highly unusual, and, in fact, more difficult to achieve in practicality
than one might think.
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The most common reason would be that its copyright term has expired. See
this
article for details; it basically lists dates of expiration for
when old photos fall into the Public Domain naturally. These photos are
those that were shot long before modern copyright law was enacted.
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Another way a work can be in the Public Domain is if the photo was taken
by a government employee (or contractor) "as a part of that person's
official duties". For example, photos shot by military photographers are
in the Public Domain.
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For everyone else, there is no clear and precise mechanism defined by law
or any other government resource for one to release images into the Public
Domain. (Foreshadow: this is the source of all the problems.)
Therefore, it is virtually guaranteed that every photo you've ever seen on
the internet is copyrighted by someone. If you aren't aware of
that, you're not alone, and it therefore suggests that most the photos you
see online should be licensed (such that the photographer is
compensated in some way).
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For a work to genuinely be in the Public Domain—a status where a photo
has no copyright holder, and therefore, can be used by anyone for
any purpose—is extremely unusual. So unusual, that one can pretty much
assume that virtually no photos you come across online are in the PD.
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In fact, in the research I've done for this article, I found that almost
none of the copyright experts I spoke with could articulate a confident
explanation of how you can rescind your copyright ownership to a
work. In fact, most questioned why I would ask such a question—as though
I were leading to something else. One person even refused to answer the
question unless I stated why I would even want to do such a thing.
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Ironically, the recommended method is oddly and deceptively simple: A
copyright holder simply states that his photo(s) are in the Public
Domain. Yes, it's true—that's all that's technically required. In Stephen
Fishman's book, The Public Domain, he writes,
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There is no prescribed formula for dedicating a work to the
Public Domain. The author or other copyright owner simply has to make
clear his or her intentions. For example, stating "This work is dedicated
to the public domain" on a book or article's title page would be
sufficient. It's not even necessary to make the dedication in writing. It
could be done orally, but it's always best to write something down to
avoid possible misunderstandings.
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While this is all that the "law" technically requires—and there are many
legal cases supporting this presumption—the reality of today's social and
technological environment makes the application of such law and prior
precedent inapplicable in many developing trends.
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Take the case of Capitol Records, Inc. v. Naxos of America, Inc., 372 F.3d
471 (2d Cir. 2004). In essence, Naxos copied mint condition patters that
contained classical music from the 1930s and sold it on CD. The music was,
for all intents and purposes, in the Public Domain (having fallen out of
copyright). The sales of the music wasn't contested at first, but when
Naxos' sales grew just a bit too much, Capitol Records finally sued for
copyright infringement (under common law) and won.
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The legal assessment of this case suggests that, just because something
may appear to be in the Public Domain, it doesn't necessarily mean that a
user of that work is entirely protected.
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An interesting summary and discussion (though a bit sensationalized) can
be found
here, which includes a notable analysis from Norman Lebrecht
here.
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While prior legal rulings may hold legal weight and standing, they
aren't going to prevent or slow down bad behaviors. Social behaviors trump
the long arm of the law when the population's actions surpasses a certain
critical mass and there are no attempts to curtail the actions by others.
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This is the very problem with the Public Domain concept: it hasn't
been updated to reflect today's society—or rather, people's understanding
of the term. PD was defined at a time when there was no internet or
electronic media of any sort. It also hasn't been perceived to need
revision since few people actually proclaim their works to the Public
Domain. There is no financial incentive to do so, and the few who've
released works voluntarily are usually well-known artists, collectors or
philanthropists. Hence, their "donations" were never questioned, or
disputed. The authors were credible and their lack of legal action against
users of those works further underscored the legitimacy of the works'
copyright status. In short, there's rarely ever been serious risk.
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The two key notations above are risk and credibility, which
go hand in hand with copyright and safety from litigation. Today, if
someone wishes to publish most any kind of work—even those perceived to
be in the Public Domain—there's risk because the credibility of the claim
or the claimant can be in doubt.
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Liability of Publishing Copyrighted Works
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Under copyright law, the publisher of a work assumes all responsibility of
liability if the work was not properly licensed from the copyright holder.
If the work is not in the Public Domain—despite some random
person's claim otherwise—the original copyright holder can file an
infringement suit against whoever publishes the work. For a publisher to
be truly "safe" from liability, he should get direct consent from the
copyright holder. (Bookmark that phrase in your brain—you'll see it
again soon.)
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You may ask, "What's the real-world threat here? How and why would someone
falsely claim that some photo that they don't own is in the Public
Domain?"
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Remember, the online world is full of malicious people looking to siphon
money from the naive and vulnerable. People can be both when it comes to
online scams, ranging from the Nigerian email schemes to more modern
methods of preying on the jobless (as described by this article in the New York Times).
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In the case of "The Public Domain", people's naivete plays right into
this, and the malicious agent can leverage this misunderstanding on both
sides of a copyrighted work. The less malicious example is less common,
and isn't used to siphon money so much as to get a free pass to steal: by
falsely attributing a Public Domain notation to a photo he wants to
publish, his defense is prepared for later if the copyright holder were to
challenge him. "Hey! That's my photo! You infringed." To which the
response is, "What? You own that image? When we got it, it said it
was in the Public Domain. We can't be held liable for that!"
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To a judge hearing this, would he believe the claim? Or would he see
through it and realize he's trying to use the image for free—robbing the
original copyright holder of his license fees?
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Or, perhaps the malicious player is setting a trap: luring an unsuspecting
publisher into thinking he can use a photo for free, after which, a bogus
copyright infringement claim is filed (with the intent of collecting a
settlement)? The exact same exchange between parties—the same dialog—can take place when the copyright holder (or the person posing as one) is
the malicious agent.
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In both cases, misrepresentation of the image takes place. The
problem facing any court is determining which side—the plaintiff or the
defendant—is the malicious player.
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What makes the crime all the better is that the judge has to consider a
third possibility: that neither side making a false claim at all.
The false claim of PD could have been made by an entirely unrelated third
party which no one can possibly find. Which of these three scenarios will
a judge choose? Would his ruling be consistent across all cases? Would it
set precedent for future rulings? No matter what, the advantage is in the
hands of the bad actor, because he has little, if anything, to lose.
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Making matters more attractive to bad actors is the volume of images.
There are billions and billions of photos on the internet, millions of
which are passed around so much, it's nearly impossible to know where any
one of them originated. By the same token, the original copyright holder
probably doesn't know either. Therefore, pretending to be the author of an
image is almost guaranteed to be believed.
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It reminds me of the now-famous New Yorker cartoon, where two dogs
are at a computer, and one says to the other, "On the Internet, no one
knows you're a dog."
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The Microstock Scheme
This scam with photography is not new; it
started a few years ago in using a slightly different scheme, one that was
also more profitable at the time than it is now.
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About five years ago, microstock photo agencies sprang up in larger masses
that gave rise to this problem. These companies are like traditional photo
agencies, but are much more lax, semi-automated, and deal with
micro-valued photo assets. They sell millions of images submitted by
photographers, who in return, receive a percentage of sales. Scam artists
started submitting stolen images to these agencies and collecting those
royalties. What made this possible is that virtually no stock agencies
require proof of ownership, or even that photos be registered with the
Copyright Office as an extra level of assurance to image buyers. Stock
agencies bear no risk; they have photographers indemnify the agency by
warranting that they are the photographer. The warranty may or may not be
true, but it doesn't negatively impact the agency, and the bad actor
doesn't care—only the buyer is harmed here.
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There are already documented cases of this (a few of which can be found
using a variety of search terms, such as "stolen photos microstock").
Although most stock agencies don't want to publicize numbers, it's no
secret that the problem is getting worse, since the systems are largely
automated and there's no way to know whether a submitted work is stolen.
It takes very little effort to pull this off, and it's very easy for the
thief to shield his identity sufficiently. In the meantime, he collects
royalties on the images he submits.
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And don't think I'm giving anything away here—cyber-criminals are way
ahead of all of us. In fact, the above method is now seen as less
lucrative than other related schemes. Most legitimate photographers earn
only a meager $10,000 or less per year with most stock agencies, and those
are the successful ones. (PDN Newswire publishes surveys every year.)
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If you're a thief, you're thinking, why bother with stock agencies and
collecting license fees from legitimate buyers, when a greater payload is
achieved by threatening copyright infringement against publishers of
photos that the con artist has claimed.
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Though the problem is far from pandemic, let's not forget the phishing
schemes were at one time rare anomalies, too. Once an easy way to make
money is found, thieves are entrepreneurial in how quickly they perfect
and automate the system. And phishing turns out not to be too different in
principle than the scheme here: lure a naive user into believing a
frightening claim. "Login to your bank site and reset your password now!"
Anyone that would believe that would also believe, "You've stolen one of
my images; copyright infringement can be quite expensive, but I'll be
willing to settle out of court, saving both of us time and money."
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The Creative Commons Scheme
In fact, I cited long ago how this
can be done using Creative Commons licenses. The CC is a series of
license agreements by which copyright holders permit users to publish
their works for free, provided that author credit is given as a byline
(among other options the CC optionally provides).
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By adjusting metadata in the images to proclaim Creative Commons status,
and spreading them around photo-sharing websites rather than stock photo
agencies, the game is to entrap licensees who seek CC attributed images,
and then sue them once they publish them. As before, the claim is "I
never attributed those photos with a CC license! You've infringed!"
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The Creative Commons' role in contributing to the growing misunderstanding
of copyright is complex and unfortunate. The stated objectives and wider
ambitions of the CC are worthwhile, admirable, and valuable to society,
but unless handled properly (by paying attention to the side effects of
its popularity), it can lose favor if its downsides are realized.
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The CC's popularity is more directly augmented by social-networking sites
who promote it for their own economic interests: They derive revenue on
traffic, advertising, and membership fees—not from content. The
more end-users share content online, the more traffic the site gets. The
Creative Commons license fuels the rate of photo-sharing, which helps the
site, but perpetuates the greater misunderstanding about copyright. The
complex agreements behind CC are never read by individuals, who also don't
understand the opportunities they give up. Nor is it in anyone's financial
interests to warn potential users of CC works that they are
assuming some liability in the event the CC attribution is not authentic.
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The Public Domain Scheme
How does Public Domain factor into
this?
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Like Creative Commons, the use of PD works is free. But that's not really
the critical detail here. What's shared between these forms of content
attribution is that they are the only two ways in which publishers
would use works without obtaining consent directly from the creator
of the work (or authorized assigns).
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Remember when I told you to bookmark the statement that licensees are
safest when they get direct consent from the author of a work? Now
is where that applies. Again, under copyright law, the publisher bears the
liability of using works. And when liability is in play, someone has
economic incentive to exploit that legal fact for profit. The consequences
are so onerous, that even the threat of an infringement causes wallets to
open and cash to come flying out, just to make the problem go away.
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What both the Creative Commons and Public Domain have inadvertently
accomplished is the creation of a huge liability gap, through which a Mack
truck can be driven.
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I repeat again that both mechanisms were conceived with good intentions.
Of course, it's by design that the Public Domain and the Creative Commons
are set up to avoid direct, one-on-one contact between the
publisher and the author of a work. This would be the best way for people
have their works widely and frequently used by others for free. But this
very aspect of those copyright vehicles is leading to misuse and abuse.
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And therein lies the paradox. There's an old saying, the road to hell
is paved with good intentions. And in the case of CC and PD, the
pavement materials used for this road consist of photos and fraudulent
claims of ownership and copyright status.
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I can speak to this from personal experience. Of the 40,000+ images on my website, I often find
anywhere from 1500 to 3000 instances of my images on other websites
(not counting those who legitimately license from me) at any given time.
And though I can't reliably track infringements on a real-time basis, it's
very common for me to find my photos on someone else's site, or on a
photo-sharing site like Flickr. In such cases, it's almost always an
innocent consumer who's just copying and posting photos they like from
various websites they've visited (totally unaware that such copying is a
form of infringement). In some cases, I find that my photos' metadata
records have been altered in various ways, showing different authors,
different locations, and yes, different copyright status, including
both CC and Public Domain claims.
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In most cases, it's unlikely that those changes were made by the person
that presents the page. (I can usually tell by gauging the sophistication
or naivete of the person I'm emailing.) Rather, my photos were most likely
copied from my site by someone else first, who modified them, and then
passed them around the net before the unassuming Flickr user found them.
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Could those have been the original malicious players? I've no idea, but
one can only speculate what other motivations there may be.
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On those occasions where I find my work is being infringed
commercially, I always hear one of several excuses by the infringing
party in their attempt to absolve themselves of responsibility (and
liability): "It said it was in the Public Domain (or had a CC license)."
"We got it from a CD that has royalty-free images on it." Or, "Our graphic
designer got it from another supplier." "We have no idea where we got it."
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As the true copyright holder, I have no idea whether they are telling me
the truth. All I know is that I'm not getting my license fees for their
use of my image. If their excuses are to stand, they just got away with
using a photo without paying for it. One of us is about to get screwed.
Who should it be?
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It turns out, the law is on my side—it's their responsibility to assure
they licensed a work properly from the original copyright holder (or his
assigns). Which brings me full circle to the problem. The publisher always
assumes risk using photos that they didn't obtain directly from the
source. And when most people are so massively uninformed about Public
Domain, that risk turns into reality from improper licensing practices.
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All this leaves the whole purpose and benefit of Public Domain in doubt:
What value is there to it if, in practicality, no one can necessarily
trust it?
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By this point, you may be thinking of The Orphan Works Act (OWA)—a new
proposed legislation that gives limited protection to certain kinds of
publishers who may inadvertently infringe on a work because they were
unable to identify or locate the author of a work. Though the OWA doesn't
actually do what most people think it does, it still doesn't apply here
because the bad actors are employing a scheme that involves posing as a
copyright holder and threatening a publisher with an infringement
suit—not actually filing one.
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The legal costs in defending any claim (even a bogus one) is always
greater than ending the dispute with a settlement of some sort. Even
if an infringer would be protected by the OWA, he still doesn't want to
spend lots of money in court defending himself. He will settle.
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So, OWA doesn't really protect publishers the way copyright holders have
thought it does, nor is it going to be a deterrent for bad actors to
fraudulently masquerade as copyright holders. (Besides, the reality of the
OWA is that its beneficiaries are different types of organizations, for
only certain types of uses.)
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So, there's nothing in the current legal system that can really be done to
avert these kinds of schemes, given how easy they are to perpetrate and to
hide from (especially overseas).
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However, history has showed that illicit activity like this is ameliorated
when there's a legitimate, mainstream infrastructure that engages the
general population. When people are more participatory, they become aware
when something appears out of place or suspicious.
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The problem with Public Domain is that it's so rare and people are so
uninformed about it, people can be lured into a moral hazard. This
is a term used in economics that describes how people will do risky things
if they perceive they are guarded against the consequences. Here, people
think Public Domain applies to things that aren't actually in the Public
Domain, so they do risky things with those works.
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If people were more engaged in the copyright process, both as creators
and users of works, they would be more cognizant of their own
behaviors, as well as those of bad actors. To get them more engaged,
companies need to invest in systems, mechanisms and infrastructure that
creates an economy around photo-based copyright. But the reason none of
this exists is because no one can build a business case that gets around
all of the unique problems that photography presents (as described at the
top of this article).
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The only entity that can create such conditions is the government. And
this is done not through law or education, or even by financial
investment, but by changing certain key policies that give incentive to
companies to participate in the system. Their participation spreads to
consumers who participate as both buyers and sellers of photo assets.
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There are two ways to address this problem. I've already addressed one in
considerable depth in my article titled, Proposal for Privatizing the Copyright Registration
Process. In short, the government would allow private companies to
handle the processing of copyright application forms that people
submit with their photos. Currently, a tiny percentage of works are
submitted for registration, but if private companies were allowed to
process those applications as Copyright Registrars, they would have
economic incentive to promote their services, which in turn, informs and
encourages consumers to engage in copyright registration. This leads to
products and services that people would use to protect their rights—which
may include licensing services (like that of a stock agency, but on a
massive scale).
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The byproduct of such a mechanism would be that people would be far more
aware of what copyright is, and where its different from Public Domain,
leading to far less confusion about both. Social behaviors would also be
more copyright-aware—people would be more aware of their own photos,
which translates to behaviors in the workplace: they'd be more aware of
using others' photos as well. This isn't because they'd have a sudden
burst of ethics or sympathy, but because they'd be familiar with how the
system works. Just as they wouldn't illegally use a song for a TV ad, they
also would be aware that they'd need to license an image from the
original copyright holder (or his assigns) before putting it in a magazine
ad or brochure.
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The next thing the government could do—which could also be independent
of the Copyright Registrar proposal above—is to provide a brand new
form for formally releasing the copyright to a work into the Public
Domain. This process could be similar to the standard copyright
registration form that people use to formally declare their ownership of
images. (In fact, there could be a form that combines both to save time
for those users who wish to release copyright before even owning it.)
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The formal process substantiates authenticity. A potential user of a work
he thinks is in the Public Domain would have resources available to him to
formally verify it. Similarly, an author could monitor whether his works
are being wrongly claimed and classified by others.
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The credibility is also backed up by the fact that such registration would
be underscored by federal laws, which carry hefty fines for fraudulent
claims or representations. (Currently, the fine for fraudulent copyright
registration filing is $2500.) It is a long-standing observation that most
criminals avoid violating federal crimes, not just because
penalties are punitive, but the federal aspect ups the stakes
considerably... this, especially if there's a past history of criminal
activity, which can even lead to jail.
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As a side note, it just so happens that the Orphan Works Act mandates the
creation of an online database of copyrighted works. It could very well be
extended to include works the people release into the Public Domain.
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Obviously, this would have no effect on works that have been in the Public
Domain due to expiration. Needless to say, they could very well be treated
as they are today, on a case-by-case basis through the courts.
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As for the Creative Commons, this is a matter that has nothing to do with
the government, or Public Domain, unless the government wished to
institute a new derivative form of Public Domain that was a hybrid between
copyright ownership and free use and distribution—something like what the
CC is. But that's an idea for another blog posting another day.
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Anyway, the CC's liability is similar to the PD, but the solution is
slightly different because of the lack of government participation. I had
proposed a particular approach in a blog entry on January 13, 2008. There, I proposed that
the Creative Commons create a registry where authors and publishers alike
would register their works (and intentions to use them), so as to
authenticate and document who's doing what. That plan was intended to be a
stop-gap measure, but it doesn't actually stop a bad actor from
fraudulently claiming a work to be in the Public Domain. (There's nothing
more unique or preventative about a CC registry that carries with it the
heavier weight of a federal crime.)
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In other words, CC works still suffer from the credibility
question, and that can be addressed by merely requiring that works
with the CC attribution also be registered with the Copyright
Office. This not only reduces risk for all parties because the credibility
of copyright registration is substantially higher than that of a CC
registration, but the penalties for violating CC terms and conditions
escalates to statutory damages because of the copyright
registration. This would effectively bolster the overall perception and
enforceability of CC works. They would be better perceived as "safe to
use."
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The natural objection to such a proposal is that, since few people ever
register their works with the copyright office, participation in the CC
would dry up. The CC could alleviate that concern by integrating
its own registration process with that of the copyright office.
That is, by registering with the CC, you would automatically register the
work with the copyright office as well.
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This tie-in could actually encourage more people to use the CC,
both as contributors and publishers of such works.
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My long-standing view of copyright, economics and law is that the "system"
works when there are checks and balances that give credibility and
protection to the intentions of all who touch copyrighted works: authors
and users alike will participate in a system that is less subject to
unfair exploitation, which yields positive economic benefits and reduces
economic risk. This, in turn, fosters investment into mechanisms that help
facilitate and expand on such opportunities.
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In the end, the free market will find the balance between what's paid for,
and what's free. But without such mechanisms, the state of affairs today
is like the Old West: the rustlers rule.
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