Development of Creative Commons licenses

[Andres Guadamuz <a.guadamuz AT ed.ac.uk>]

Dear Karl,

Interesting question. Besides moral rights, I would like to mention the
European Court of Jusice decision re Bodil Lindqvist (ECJ Case C-.
101/01). Although Data Protection should not be equated with privacy,
the ECJ ruled that posting personal data on a website is "processing" in
the sense of the DP directive (95/46/EC), and therefore subject to
registration, notification and the many other DP principles. Pictures
are personal data (and in some circumstances, may even be sensible
personal data), so I would agree that under some circumstances, courts
may answer "yes" to the question of violation of rights.

Nevertheless, I think that way madness lies. If every European image in
Flickr is in violation of data protection principles, we would be
presented with an unenforceable situation. DP commissioners and
ombudsmen around Europe are already working overtime, and I cannot see
them going into Flickr issuing fines against users that have failed to
register as data controllers.

Regards,

Andres


Karl Ebener wrote:
> Hi,
> 
> most people should have noticed the discussion about the Virgin Mobile 
> case. I have a question that arose when I read the comments from 
> Lawrence Lessig and the CC Corporation on this topic:
> 
> In US law, how is the distribution of pictures of someone over the 
> internet to be treated?
> 
> Lessig writes 
> (http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html):
> "I doubt that any court would find the photographer in this case had 
> violated any right of privacy merely by posting a photograph like this 
> on Flickr."
> 
> and CC writes (http://creativecommons.org/weblog/entry/7680):
> "So did the photographer violate Ms. Chang’s rights?
> We certainly don’t think so. We don’t believe any court should find that 
> Justin Wong had violated Ms. Chang’s rights simply by posting this photo 
> of her in Flickr, however it was licensed. Cool (as in using Flickr, and 
> even better, using Flickr with CC licenses) can’t be a crime."
> 
> Is that so in US law (after having read above, I assume so)? And if so: 
> why? Is there any written law/decision(s) on this topic? Or any source 
> where I could look this up?
> 
> I ask, because in Germany the right to a picture of you is part of the 
> general moral rights and any distribution is subject to your consent... 
> Thus, in Germany, the question "So did the photographer violate Ms. 
> Chang’s rights?" would most like be answered with "Yes"...
> 
> Thank you very much
> Karl
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-- 
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://technollama.blogspot.com/