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["David Alexander Russell" <webmaster AT davidarussell.co.uk>]

Could it be relevant that the photograph wasn't taken for commercial
purposes - the photographers' rights PDF that Paul Dixon linked to [Monday
25th] says that:

'The restriction only applies to photographs taken in connection with any
business, profession or employment'

>From this it would seem that, if your purpose for taking it wasn't
commercial (e.g. you took it on the instructions of an employer, or you're a
freelancer intending to sell it when you take it), then you are allowed to
take the photograph. Once you have taken the photograph, surely you then own
the copyright on your photograph and can license it as you choose?

I'm not legally trained, though, perhaps a lawyer type could clear this up

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Today's Topics:

   1. Re: Granting commercial rights you don't possess (JS Hatcher)
   2. Re: Granting commercial rights you don't possess (Stuart Yeates)
   3. Re: Granting commercial rights you don't possess (Malcolm Bain)


----------------------------------------------------------------------

Message: 1
Date: Mon, 24 Oct 2005 10:12:41 -0500
From: JS Hatcher <s0456260 AT sms.ed.ac.uk>
Subject: Re: [Cc-uk] Granting commercial rights you don't possess
To: cc-uk AT lists.ibiblio.org
Message-ID: <18893450a477f9c96db4fa380ca5c3c7 AT sms.ed.ac.uk>
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On 24 Oct, 2005, at 9:57 AM, Paul Dixon wrote:

> There are some public places in the UK where professional photography 
> requires a permit, such as Trafalgar Square (source [1]). What happens 
> when someone publishes one of their amateur snaps under a CC licence 
> allowing commercial activity (see [2] for example)
>
> This raises a number of questions I'd be interested in hearing opinion 
> on...
>
> 1) If a photographer is aware of the prohibition, can they actually 
> grant commercial terms? Is the licence void as a result?
>

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.

> 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.

> 3) there's no mechanism for "recall" with a CC licence, once the 
> subject matter is "out there" and someone has exercised the licence 
> there's no way to put the genie back in the bottle. How do we deal 
> with situations where a photographer or third party discovers a 
> potental licence problems months or years after a work was licenced?
>

I'm not so sure that the "genie is out of the bottle" any more than any
other infringing use on the internet, such as music. The difficulties
policing copyright on the internet are the same.
>
Thanks!

--Jordan
http://twitchgamer.net



------------------------------

Message: 2
Date: Tue, 25 Oct 2005 09:08:11 +0100
From: Stuart Yeates <stuart.yeates AT oucs.ox.ac.uk>
Subject: Re: [Cc-uk] Granting commercial rights you don't possess
To: Paul Dixon <paul AT elphin.com>
Cc: cc-uk AT lists.ibiblio.org
Message-ID: <435DE7EB.7010609 AT oucs.ox.ac.uk>
Content-Type: text/plain; charset=ISO-8859-1

Paul Dixon wrote:
> There are some public places in the UK where professional photography 
> requires a permit, such as Trafalgar Square (source [1]). What happens 
> when someone publishes one of their amateur snaps under a CC licence 
> allowing commercial activity (see [2] for example)
> 
> [1] The UK Photographers Rights Guide
> http://www.sirimo.co.uk/ukpr.php

I recently blogged about similar but different issues with respect to the
Eiffel Tower in Paris:

http://connect.educause.edu/blog/stuartyeates/copyright_shenanigans_with_the
_eiffel_tower/1300

The issue here is that the Eiffel tower contains artwork that is still
covered by copyright, and any photographs make a reproduction of that
artwork.

cheers
stuart
-- 
Stuart Yeates                          stuart.yeates AT oucs.ox.ac.uk
OSS Watch                              http://www.oss-watch.ac.uk/
Work Blog            http://connect.educause.edu/blog/StuartYeates


------------------------------

Message: 3
Date: Tue, 25 Oct 2005 10:22:51 +0200
From: Malcolm Bain <mbain AT menta.net>
Subject: Re: [Cc-uk] Granting commercial rights you don't possess
To: cc-uk AT lists.ibiblio.org
Message-ID: <435DEB5B.1090300 AT menta.net>
Content-Type: text/plain; charset="iso-8859-1"

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

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