Thursday, November 19, 2009

Digital Economy Bill May Change Copyright Law In UK

In the U.S., Google Book Settlement is the headline at water cooler discussions on copyright, and the Orphan Works Act has stalled temporarily, in part because the Senate Judiciary Committee is preoccupied with things like trying terrorists. Meanwhile in Europe, they have been burning the midnight oil to change their copyright laws to reflect Orphan Works, the Google Book Settlement, content theft on the Internet, and public opinion. The outcome could dramatically affect rights holders.

On November 18th, Her Majesty The Queen of England called for passage of the Digital Economy Bill in her traditional speech to the House of Lords and House of Commons. Britain’s Digital Economy Bill is based largely on a report by its Intellectual Property Office (IPO) entitled "© the way ahead". The British Journal of Photography (BJP) summarizes the report, saying it "asks rights holders to broaden the terms of their licences, allowing the public to use photographs for non-commercial uses without payment or authorisation. It also proposes the establishment of a new collective licensing agency, orphan works legislation and less ‘muscular’ enforcement of image theft."

BJP has reported on this legislative initiative from the rights holder’s perspective in two articles that are quoted in this blog post: "Copyright changes to be announced in Queen's Speech?" and "Government goes ahead with changes to UK licensing rules".

BJP says the Digital Economy Bill proposes "changes to the copyright licensing scheme [that] could impact photographers the most, as non-commercial consumers could use images without having to ask for permission or providing payment to the photographer."

According to BJP, IPO finds the current copyright system to be too complex for users. Although fair compensation for rights holders would be required, BJP quotes IPO as saying that, "making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help."

IPO believes that one big problem is not being able to find rights holders. BJP quotes IPO as saying "… systems for licensing are complex, time-consuming to access and incomplete. Copyright is automatic and many works (such as photographs) do not incorporate details of their creator or rights holder. As a result, it is hard to get permission to use works. A user may find it impossible to identify the owner of a work."

IPO seems to conclude if there is no method to easily find photographers from their images, then it’s more expedient to change copyright law to no longer make it a copyright violation to use images for non-commercial use without authorization of the rights holder. IPO says, "Making licensing easier benefits all who are currently involved …" quotes Stewart Gibson, head of Members' Services at the Bureau of Freelance Photographers, as saying that although use of a wedding photographer's pictures, for example, without consent would deprive the photographer of a re-print fee, the use of images on someone's personal blog page, say, is "probably not going to be a big deal". Gibson added: "It's not an ideal situation but there is nothing you can do about it in the internet age."

A 2009 survey concluded that over half of people feel it should not be illegal to use someone else’s photos for your personal use. When asked "Should it be illegal to copy an image from a Website for your personal use?" 74% said 'no' in the street interviews and 46% said 'no' in the online survey. Support of legalizing such use goes up even further if proper credit is provided to the creator (an "attribution right"). Subsequent surveys support these numbers. (The full copyright survey in Creator’s Circle Magazine can be read on pages 20 and 21).

This may all seem confusing, as law-making often is. Although previously inconceivable, the logical direction of this movement is clear … and unsettling. If rights holders choose not to enable all means possible to associate their ownership with their creative works, and if there is no easy way for the masses to license that work for personal uses, such as blogging, it could become politically expedient to just change copyright laws to make it acceptable to use the creative works of others without paying. BJP’s reporting would seem to indicate this is the heart of the proposal by the Queen of England.

The two easiest ways to associate a rights holder’s contact information with their images are by 1) embedding IPTC or other data in each image, and 2) using image registries like The Copyright Registry at provides various automated and bulk methods to register images at a cost that is almost free.

Monday, November 16, 2009

Google Book Settlement Enters New Phase

On Friday the 13th (11/13/09), a revision to the Google Book Settlement (GBS) was filed in Federal Court, bringing Google a step closer to achieving its vision of indexing and providing the literary history of the world to the world. The GBS Revision seems designed primarily to appease the U.S. Justice Department, which has expressed anti-trust concerns, as well as objections by foreign countries, such as France and Germany, which have raised international political pressure relating to copyright laws and treaties because of GBS.

The GBS Revision removes many foreign publications from the class action, drops a “most favored nation” provision that provided Google with at least as good a deal as any competitor in the future, assigns a Fiduciary to watch over rights, and changes how monies received for “orphaned works” will be used.

The revised settlement agreement is subject to the judgment of Federal Judge Chin. The U.S. Justice Department will likely give a second opinion early in 2010. And while many people support the goal of making books available that were previously unavailable, the process is clearly ongoing with many players on the stage.

Here is a layman’s perspective on a few of the highlights of the GBS Revision, mostly taken from Google’s summary of the revision:

The Book Rights Registry (BBR) will add an independent, court-appointed Fiduciary to control unclaimed funds for “orphan works”, including books and inserts. The Fiduciary will be responsible for representing the interests of rightsholders. This seems intended to address what the U.S. Justice Department saw as a conflict of interest in which the BBR searches for the owners of orphaned works, but if they don’t find the owners, gets to keep the money (to offset operating expenses) or pay it to other rights holders of unrelated works. In the GBS Revision, after 10 years (up from 5 yrs), unclaimed monies will go to literacy-based charities, government entities (ie, state attorney generals) or “fully participating” libraries. The Fiduciary can spend up to 25% of that money trying to find the owner of each unclaimed creative work covered by the settlement.

Foreign countries, such as France and Germany, and publishers in those countries have voiced loud objections to GBS. This prompted the European Union to consider legislation to counter the effects of the Google Book Settlement. The GBS Revision drops most authored works from countries that do not “share a common legal heritage and similar book industry practices”. Books by authors from the United Kingdom, Canada and Australia remain in the deal, as well as any books registered with the U.S. Copyright Office.

Any book retailer (ie, Amazon, Barnes & Noble, local bookstores, etc.) will be able to sell online access to consumers of unclaimed and out-of-print books covered by the settlement. For book sales by Google, a “black box” algorithm will set pricing based on dynamic industry comparisons. Rightsholders will still receive 63% of the revenue while retailers will keep the majority of the remaining 37%.

The “Most Favored Nation” clause is removed that made the Book Rights Registry offer the same terms to Google before licensing unclaimed works to other parties.

And, additional revenue models (for which BBR can license works) is now limited to Print-On-Demand, File Downloads and Consumer Subscriptions.

Photography continues to be excluded from this class action in most instances.

While Google has taken definitive steps to make the Settlement more acceptable, it remains to be seen if Judge Chin will favor the GBS Revisions or the arguments of those who continue to oppose GBS, such as the potential competitors that created the Open Book Alliance, who described the GBS Revision as a “sleight of hand, surgical nip and tuck”.

There is a recorded press conference-style call that included Richard Sarnoff, Chairman of the American Association of Publishers, Paul Aiken, the Executive Director of the Authors Guild, and Daniel Clancy, who it the Engineering Director for Google Books. You can register to hear/replay the discussion by calling (888) 203-1112 or (719) 457-0820 and entering the code “3915040”.

And, Google has issued three documents on the proposed Revision to the Google Book Settlement (GBS) as follows:

Revised GBS Agreement

Summary Of GBS Revision

FAQ’s About GBS Revision

Some Other Resources About The Google Book Settlement Revision:

New York Time’s summary of the GBS Revision

The Laboratorium, organized by lawyer James Grimmelman, has detailed legal analysis of the GBS Revisions that supplements his extensive coverage of GBS to date

Thursday, November 5, 2009

Best Practices Copyright Registration Quantities

Best Practices for governmental copyright registration suggest that you should only publish and register one image at a time. As insane as that sounds, it is what could be needed to maximize the value of formal governmental registration with the U.S. Copyright Office, which is required to sue for copyright infringement in U.S. Federal Court.

There’s a tricky and debatable ramification to governmental copyright registration that’s rarely discussed, one that could have a significant impact on the value of an infringement settlement.

A very small percentage of copyright infringements make it all the way to Federal Court. When they do, the defense attorney is inevitably going to argue diminished value of the copyright in every way possible. One way to lower the value of the claim is to argue that the maximum statutory damages must be divided by the quantity of images in their first publication or their governmental registration.

Said another way, if your registration at the U.S. Copyright Office has 10 images on a single application form, and if all 10 images were infringed upon by the same defendant in one occurrence, then defense council will argue that the maximum statutory damage of $150,000 must be divided by 10, which is $15,000 per image. If defense council can get that argument to “stick”, then several conclusions could extend from that logic.

Defense council will argue that the quantity of images in the formal registration divides the applicable valuation or award, even if only one of ten images is infringed. Because 10 images were registered, the award could be $15,000 per image, 1/10th of the maximum statutory limit of $150,000 divided by the quantity of images registered. That’s what defense council will likely argue.

Taken a step further, it could be argued that the first date of publication (the first time people saw your images) also divides the copyright value. So, if you publish 10 images on a web page and that’s their “first publication”, then it could be argued that each image can only get 1/10th of the full statutory maximum, regardless of how they are formally registered because they were published as a collection of images.

Presto, the value of the infringement settlement could plummet 90% (or lower if more images are first published together or registered in one copyright application) if defense council can make this argument prevail. Whether or not one agrees or disagrees with this position is irrelevant. It could be argued by defense council and supported by an expert witness, and it will be in all likelihood.

So, what’s a photographer or illustrator to do?

It is the recommendation of and a Best Practice for Copyright Registration to limit the quantity of images in the first publication of each to only one image … and, to limit each governmental copyright registration to one image per application. In this way, the quantity of images at first publication will not impact the value of what’s being copyrighted, and the full value of statutory damages will likely apply to each infringed image.

Because grouping many images together in their first publication or in formal governmental copyright registration could lower the damages that are collectible when an infringement goes to court, it’s a Best Practice to only publish or register one image at a time.

Of course, neither of these approaches is practical for many. It can be time consuming and expensive, especially if one's tech skills are limited. Batch processing and automated workflows can keep first publication from being a "collective work". But, a la carte, individual registration eliminates the efficiency of bulk registering all the images of a photo shoot or project or calendar year and adds a logistical burden to creators. Some statistics say that 95% of photographers don’t register their copyright.

The inconvenience factor is one reason why image registries like are growing rapidly. Registration with the U.S. Copyright Office is the best defense a creator can have. But if the decision is made to not formally register one’s copyright because of time or money constraints, then some protection is better than none. provides automated registration of many images at once in its commercial registry with its patent-pending Site Protector tool.

Image Registry Adds Automated Registration

Here’s a big step forward for photographers and illustrators to protect the value of their creative works. Site Protector™ enables automated registration of images on an HTML web page in the name of the creator. This new, patent-pending tool facilitates registering images in the image registry at

Every time you do a photo shoot, you can now create a web page of images of that shoot, add the simple source code from Site Protector, and upload that page. Every image on that page or added later to that page will be registered automatically in the name of the creator at The Copyright Registry at

C-Registry is working on automating the whole copyright registration process. This step gets visual content from web pages registered in the image registry. Coming later … getting it from the image registry into the U.S. Copyright Office.

But meanwhile, photographers and illustrators can conveniently register every image they create by adding source code from Site Protector to the HTML web pages of their portfolio or company site. And if the code is added to a header or footer that spans multiple pages in a web site, every image on every page at that site will be automatically registered for the creator.

This isn’t the U.S. Copyright Office. But it’s the next best thing. And, it’s only $25 per year to register unlimited quantities of images.

Read the press release on automated registration in the image registry.

And, here’s the instructional video on how to automatically register your copyrightable images at