W-J's Copyright Problem

[Andy Finney <andy@xxxxxxxxxxxxxxxx>]

As there has been quite a bit of correspondance about the appearance of
W-J's photos on that auction web site I thought I might try to explain a
little about the actual intellectual property issue here because it is
somewhat obscure and rather interesting. My 'credentials' for doing this
are that I have researched this very subject for part of the book 'Managing
Multimedia' which I co-wrote with Elaine England. This is based on UK (and
therefore European) Law although the basic principles also apply in the USA.

My main reference is a book called "Internet Law and Regulation", edited by
Graham Smith in the Financial Times Tax and Law series. I must say that my
interpretation of the issues here are both simplified and from a lay
perspective so you must not accept anything I say here as a legal opinion
... take it as background information.

The main basis of copyright infringement is unauthorised copying or some
other restricted act. One such restricted act is unauthorised transmission
by a cable service and it seems that a web page is classed as a cable
service in the UK. These aspects of a web page provide the bedrock upon
which an infringement may occur.

By including W-J's images in a web page the person concerned does not
actually infringe W-J's copyright by copying or inclusion in a cable
service himself. (He may well have infringed W-J's moral right to be
acknowledged as the photographer but moral rights are currently a European
legal concept so I don't think any action could be taken in an American
Court.)

The copying and inclusion in a web page occurs, if it occurs anywhere, when
the page is put together on the viewer's computer and SMITH does explore
reasons why this might be an infringing act. Although the viewer may have
unlawfully copied the images he has done so in the reasonable belief that
he was authorised to do so by virtue of an implied license - if it's in the
page then you can put it on your screen - or fair use. The issue here is
whether the implied licence is valid.

Including the link to W-J's photos without his permission is outside any
implied permission that W-J gives to viewers of his site ... as do we all
... which allows viewers to assemble a copy of the page for viewing on the
screen and no more. So the person who wrote the page with the links, and
the site that displays the page, might be in breach of copyright as a
result of this. This person was not authorised by W-J to authorise the
inclusion of the copyright material.

Incidentally, similar issues occur over the use of frames where someone
else's web page appears in a frame on your site. Under some circumstances a
court may grant seizure of equipment used for copyright infringement as
well as damages, but this is unlikely to occur in a case such as this. But
if you run a web site and allow people to post to it you run the risk of
being a party to infringement as well as things like libel. Under such
circumstances the web site owner (as publisher) should respond to
allegations of infringement seriously.

As a final thought, the inclusion of a copyright notice is not required in
law. However, including it removes any possibility of an ignorance
mitigation. It is plainly naive to assume that things seen on the web are
fair game unless they carry a copyright notice but common sense drives me
to copyright all my photos in this way. As has been pointed out elsewhere
in this group, US courts seem to judge damages in different ways depending
on whether you have a notice or not: but then they also seem to allow, as
fair use, infringement which is to the benefit of the copyright owner.


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