Copyright Wrong

Copyright Wrong

The US, Europe, and Australia appear to be heading in the same direction as the UK Government in liberalising copyright of images. This has implications for anyone who posts images on the internet.

In May, the UK Government passed the ‘Enterprise and Regulatory Reform Act’, which among many other things allows firms or organisations the right to use ‘orphaned’ material, providing ‘a diligent search’ for the copyright owner is first carried out.

The British photographic community is lobbying hard to alter the law as it relates to photographs.

‘Orphaned work’ is creative work which has become detached from its ownership – things like out-of-print books, archival film and video – and photographs. While most orphaned works are old, a digital photo can become an orphaned work hours after it’s created. And images in old magazines or books are more likely to become orphaned than other works.

While notions of fair usage and diligent searches may protect the rights of owners to other kinds of orphaned works, photos – particularly photos on the internet – are a singular case. Besides the sheer needle-in-a-haystack number of them – they are easily  kidnapped, as opposed to orphaned. The world wide web is the wild, wild west when it comes to lawful behaviour and respect for intellectual property rights. But unless there’s a considered and convincing response from professional photographers groups, the new proposals are likely to become law.

The Australian Law Reform Commission has recommended a similar approach to the one adopted in the UK, but adds the word ‘reasonably’ in front of ‘diligent search’, which seems to water down the requirement to find the copyright owner even further.

This is a severe threat to the livelihood of pro photographers, and also brings into question copyright protection for both amateurs and professionals.

The recommendations to free up copyright law is contained in a 388-page discussion paper called ‘Copyright and the Digital Economy’, which was made public at the end of May.

If an ill-defined ‘reasonably diligent search’ is carried out to discover the owner of the copyright to a photo and it fails, usage is allowed.

This will probably entail some kind of collection agency which will be paid a fee to conduct a diligent search and administer the system. It may charge a fee for usage of orphaned works, (providing an incentive not to look too hard). There is no definition of what a ‘reasonably diligent search’ might look like. In the case of internet photos, could it be as basic as an image search?

The ALRC report acknowledges photos are going to be tricky: ‘The ALRC heard that photographs are susceptible to being orphaned due to rights information being removed when placed online.’

– However there are no remedies suggested, so unless the photo industry speaks up for itself it is likely to be ‘collateral damage’ in the otherwise worthy effort to liberalise copyright on older works and free up creative content.

The current law says that there is no ‘orphaned works’ exception to copyright. If you are not the owner of the copyright to an image, you simply can’t use it until it falls into the public domain at the end of the copyright term. Copyright protection is a given.

For instance, this month US photographer Robert Caplin is  suing celebrity muck-raker Perez Hilton for copyright infringement  after he used photos of  Glee  actor Darren Criss on his site without permission, according to a complaint filed in Los Angeles Federal Court. http://observer.com/2013/07/new-york-times-photog-sues-perez-hilton-for-2m-in-copyright-infringement-case/

Mr Hilton published 14 copyrighted images on PerezHilton.com and added his own watermark over the photographer’s. Mr Caplin is asking for damages of $2,100,000 ($150,000 per photograph).

One wonders how Mr Hilton could assume he was going to get away with it, given the high profile of all involved, but for every newsworthy incident like this there must be hundreds or even thousands of transgressions where the copyright owner remains in blissful ignorance. (But in this case, what they don’t know  does  hurt them.)

Many if not most photos on the internet don’t carry any copyright information. Sometimes it is stripped out when it is posted on social network sites, sometimes the ownership is not lodged in the metadata, sometimes the copyright data is simply cropped off. But publishers, ad agencies, etc, all understand that using someone else’s photos without permission, without the right to make a copy – is illegal. That fundamental protection will be removed with these proposed changes, so that using someone else’s photos just  might  be legal.

These are the ALRC’s proposals on Orphan Works:
 Proposal 12″“1:  The fair use exception should be applied when determining  whether a use of an ‘orphan work’ infringes copyright. (‘Fair use’ is another can of worms for photographers, but beyond the scope of this article. Suffice it to say that it  may be fair use for the user, but not necessarily for the creator.)

Proposal 12″“2:    The Copyright Act should be amended to limit the remedies  available in an action for infringement of copyright, where it is established that, at the  time of the infringement:
 (a) a ‘reasonably diligent search’ for the rights holder had been conducted and the  rights holder had not been found; and
 (b) as far as reasonably possible, the work was clearly attributed to the author.

Proposal 12″“3:  The Copyright Act should provide that, in determining whether a  ‘reasonably diligent search’ was conducted, regard may be had, among other things, to:
 (a) how and by whom the search was conducted;
 (b) the search technologies, databases and registers available at the time; and
 (c) any guidelines or industry practices about conducting diligent searches available  at the time.

(-  Say what!?)

The ALRC Inquiry into copyright is reaching its final stages. Following publication of the Copyright and the Digital Economy Discussion paper, the ALRC is calling for submissions, with a final report to go to the Attorney-General by November 30. The cut-off date for submissions is July 31.

The AIPP (Australian Institute of Professional Photographers) is aware of the looming deadlines, according to executive director, Peter Myers, and and AIPP member is working on a submission on the Institute’s behalf. Moreover, the AIPP will be mobilising pro photographers via its emailed newsletter to agitate around the proposed changes.

To access the ALRC discussion paper in a range of digital formats (it also contains directions on how to make a submission) click here:  http://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79

Consumer laws another reason to buy locally

Hewlett-Packard Australia (HP) has been  fined $3 million  in the Federal Court for making false or misleading representations to customers and retailers regarding consumer guarantee rights. The offences were committed by  HP staff working at call centres located around the world.

While HP isn’t a big player in photography, with inkjet printers and ownership of Snapfish as its main touch points, the new consumer laws definitely do touch photography, and camera companies will be watching the treatment of HP with some discomfort.

The new Australian consumer laws say that, for goods purchased on or after January 1, 2011, where a product develops a major fault, consumers have a right to a replacement or refund from the supplier of the product. For products that develop a minor fault, a consumer has a right to have the products fixed (at the supplier’s discretion) within a reasonable time.

If the supplier doesn’t do so, the consumer can either reject the goods and get a refund or have the problem fixed and recover reasonable costs of doing so from the supplier.

These rights can extend beyond the manufacturers 12-month warranty.

This is critical and not well understood as yet: If, for instance, the LCD screen on your DSLR packs it in 14 months after you purchased it, under the old laws you would pay for the repair and put it down to bad luck.   Under the new law, you should be able to insist that a critical component on a relatively expensive bit of kit last for longer than a year.  As well as extending the obligations of suppliers and retailers, this brings into question the value of extended warranties   especially on high end cameras.

The offences were committed by  HP staff who were following HP’s internal guidelines and scripts. The ACCC’s legal representative described the offences as a ‘systemic issue’ within HP. The Australian Competition and Consumer Commission instituted proceedings against HP in October last year.

The Court found, based on facts agreed between the ACCC and HP, that the corporation was telling Australian customers:

• the remedies available to consumers were limited to the remedies available at HP’s discretion;
• consumers were required to have their product repaired multiple times before they were entitled to a replacement;
• the warranty period for HP products was limited to a specified express warranty period;
• consumers were required to pay for remedies outside the express warranty period; and
• products purchased online could only be returned to HP at HP’s sole discretion.

In short, HP was treating its customers like mushrooms…

In addition, the Court found that HP represented to retailers that it was not liable to indemnify the retailer if the retailer failed to obtain authorisation from HP before giving a consumer a refund or replacement.

In his judgement, Justice Buchannan stated that the penalty was appropriate and ‘reflects an acknowledgement of the seriousness of the respondent’s conduct.’

Justice Buchannan noted the Court’s disapproval of HP’s conduct and the need for general and specific deterrence for such behaviour.

‘This was an important case to the ACCC. The misconduct was widespread and systemic from a very large multinational firm,’ said ACCC chairman, Rod Sims.

‘The ACCC believes that this penalty sends a strong message to all companies, particularly large multinational companies, that the Australian Consumer Law is not negotiable. This result also shows that the Court is not afraid to impose significant penalties for serious contraventions of the ACL.

‘All businesses operating in Australia require robust mechanisms to comply with the consumer guarantees provisions under the Australian Consumer Law,’ Mr Sims said.

In addition to the $3 million penalty, the Court also made orders including:

• declarations;
• injunctions;
• a contribution towards the ACCC’s costs of $200,000;
• consumer redress orders;
• public disclosure orders;
• corrective advertising orders; and
• orders to implement a compliance program.

The Court’s orders include a requirement that HP set up a consumer redress process for affected consumers.

Now the ACCC has Harvey Norman in its sights. After losing an initial case on a technicality, the ACCC has recommenced proceedings against nine Harvey Norman franchisees for similar offences to those HP was found to have committed.

While specific allegations made by the ACCC against each of the franchisees differ, examples of the stores’ misrepresentations include:

• the franchisee had no obligation to provide remedies for damaged goods unless notified within a specific period of time, such as 24 hours or 14 days;
• the franchisee had no obligation to provide remedies for goods still covered by the manufacturer’s warranty;
• consumers must pay a fee for the repair and return of faulty products.

It’s worth noting that this kind of protection – among the most comprehensive in the world – is not realistically part of the deal when you purchase products from offshore-online retailers. They are well out of the reach of the ACCC. Buyer beware.  

> Keith Shipton  www.photocounter.com.au