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[Malcolm Bain <mbain AT menta.net>]

Hi all

JS Hatcher wrote:

You can't  grant what you don't own. The photographer owns a copyright 
in the photograph no matter if it infringes or not. The license applies 
to that photograph, but doesn't mean that the photo doesn't infringe 
someone else's copyright.  It might help to think of a photo of a 
painting.
  

But the issue here is not a photo that infringes someone else's copyright (unless Ken is claiming copyright in the statue of Nelson, which I doubt :) ) - which is the traditional issue of "illegal" files on the web - , but a photograph that is taken (potentially) infringing a byelaw. As you say, the photo belongs to the photograph, and he/she can license it as wished. The illegal nature of the original photo taking should not "infect" the license.

It seems to me the questions are:
-- how to determine whether the photographer infringes this byelaw (commercial usage or not - intepretatino of Ken's money grabbing byelaw) (A question for the photographer, not Geograph)
-- up to when does the bye law apply? (for me, when the photo is taken, not three weeks later when you upload the photo to the web? Can one have post-snapshot commercial purposes - ie someone realises the snapshot has a famous person in the background doing something naughty and wants to sell it the press?)
-- who should be responsible for ascertaining that the byelaw was not broken. Not Geograph, I don't think - otherwise it would have to check the non-copyright related legality of all the photos it publishes - this is a classic case of ISP not being liable without knowledge - see Ecommerce Regulations - normally Geograph would just wait for a Take Down Notice or court order (or whatever the latest thing is in the UK on "ISP knowledge")
-- rules on dealing in illegal photos (illegal as in infringing a bylaw, not infringing copyright) - I am not clear about this at all! It is not like stolen goods or copyrighted works...

This is closer to the questions of child pornography or obscene content (illegal in relation to the subject matter, not the copyright - and even then, it is not even the subject matter which makes it illegal, but the way the photo was taken) than p2p file sharing isses.

2) In most cases like this, I would imagine the photographer is unaware
of the prohibition. Who is exposing themselves to potential legal
action? Someone using the image commercially? The original 
photographer?
A site like Geograph distributing the image for free?

    

The answer here is that if the photograph infringes, then everyone is 
exposed. State of mind is not a factor in copyright infringement, nor 
is commercial use.  These factors may play into the damages aspect of a 
suit.
  

Not necessarily. There is no copyright infringement here which goes "down the line" - we are in the realm of byelaw infringement which I believe only stops with the original infinger (and maybe aiders and abetters... :) ).

Geograph could publish a policy saying: "we shall not publish photos of Nelson or Big Ben  (or deer in Richmond Park) unless you provide a certificate from Ken. Like that Geograph could not been seen to be inducing the heinous crime of snapshotting Nelson. (I am exaggerating here...but you could put something like this until the legal situation is clear) + reserve the right to take down any pictures  that may infringe (look up ISP liability in the UK, please)

This needs more thought, and input from lawyers who know about dealing in the proceeds of "administrative offenses" rather than copyright!

Malcolm