Commercializing Photographic Works Online Lucinda Jones WIPO-CAPS Workshop

Commercializing Photographic Works Online Lucinda Jones WIPO-CAPS Workshop on Management of Intellectual Property for Photographers Beijing December 8 -9, 2005

Overview • • • Copyright online in China Should you go online? How to go online Technical protection Legal issues Decisions. .

China Copyright Law - Internet u Amendments in 2001, Chinese Copyright Law applies to copyright on the Internet – – u holds violators responsible for copying of online art (photos) future joining WIPO Copyright Treaty and Phonograms and Performances Treaty ? (give authors the exlusive right to authorize communication of their works to the public by any means, including the Internet) From May 2005, Internet service providers (ISPs) can be notified and asked to take down infringing copyright photographs – “notice and takedown” – ISPs must remove the infringing content - if they know but do not remove the illegal content, income is confiscated, and fines imposed

Should photographers go online? u Should you put your photographs online? – Depends on purpose Fpersonal use Fto share without restriction Fcommercial use - depends – No 100% protection – Only sure protection is not to put your photos online!

Opportunities & risks u Opportunities FGlobal marketplace more than 1/2 billion people online FChina - more than 100 million online users (second largest in world, still only 8% of population) u Risks Fcommercial infringement/copying - “piracy” Fmassive instant copying - peer-to-peer (P 2 P) file sharing Fonline users little knowledge of copyright Fdamage to reputation by misuse, alteration Flegal liability in foreign jurisdictions Fcosts may outweigh benefits

How to go online u Register a domain name & set up a website u (. com, . biz, . cn) www. imagesofchina. com www. imagesofchina. cn – user-friendly – correspond to your trademark – ensure you don’t infringe another person’s trademark – WIPO Arbitration & Mediation Center - Trademark Database Portal http: //arbiter. wipo. int/trademark/index. html

Registrar for. CN - China Internet Network Information Center

See if it’s available - www. whois. com

How to go online u Set up a website – take care with agreement with website developer – decide who will own the copyright in the website design – decide target audience (local, national, international) – decide purpose - personal sharing, advertising and marketing, commercial sales – choose technical tools (software, DRM) – decide delivery method for goods - postal physical delivery or networked digital delivery – ongoing management and monitoring

Technical protection u Digital rights management (DRM) (1) identification & description of IP rights relating to the photograph (“metadata”) (2) technical enforcement of conditions of use (“digital rights management”) u Micro-payment mechanisms u Technological protection measures

Technical protection u Ways to protect your photos online – Control access to your website by passwords or less publicity (but losers viewers and customers) – Disable users’ right-click to stop ‘save as’ (annoying, and can be circumvented) – Encrypt the website or prevent downloading (software expense and may restrict viewing) – Visible watermarking (can be removed by cropping, and interferes with image) – Digital watermarking (can be tracked, may be removable) e. g. , i. Watermark software – Low resolution or small (thumbnail) images (can spoil appearance of website) – Web spider programs - track images via web browsers

E. g. , www. Watermark. Factory. com

E. g. , www. Photomark. biz

Technical protection u Electronic rights management u Rights management databases u Collective management organizations u Development of standard identifiers to attach to photos permanently – e. g. , Digital Object Identifier (www. doi. org)

Legal Issues u Jurisdiction - application of laws u IP & commercial laws are territorial u Internet is global - your website is potentially accessible in hundreds of legal jurisdictions u You could infringe other laws - and your photos could be copied in other jurisdictions (legal action in foreign courts) u Copyright protection is available in most countries - and granted to foreign artists under international treaties

Legal Issues u Jurisdiction - application of laws u Precautions – language (Chinese or English? ) – currency (yuan or dollars? ) – disclaimer (This site is intended for customers resident in China only…) – choose law of contract – technical protection measures

Legal Issues u Digital images - digital manipulation u Enables: – removal of minor flaws (scratches, dust, red-eyes. . ) – change brightness, contrast – burning or dodging (darken, lighten) – cropping an image – coloring, including colorization of B&W – reversing an image – adding, moving or deleting objects u e. g. , Adobe Photoshop, Corel Painter, GIMP. .

Legal Issues - digital images. . u Raises legal issues: – copyright infringement (derivative works) Fis the manipulated image an original work or is it a mere copy of the photograph? – moral rights infringement (integrity) – defamation (e. g. , use in inappropriate context) – misrepresentation (passing off) – parody (exception to copyright under some laws) – breach of contractual terms u Raises ethical issues: – disclosure to public (captions) – disclaimer

Legal Issues u Fair use copying – for personal home page u Temporary copying u Search results can include thumbnail photographs – e. g. , i. Watermark software can create thumbnails of your photos, low resolution (prevents copying) – each thumbnail shown in search results is a copy of another photograph - potentially copyright infringement u Temporary copies - cached in a computer memory – each temporary copy is a copy under copyright – legislation usually makes exception from infringement for such copies if transient incidental

Legal Issues u Hypertext linking – program command telling the Web browser to go to another online document, or part of it – can amount to copyright infringement or unfair practices in some cases: – surface linking - links to first/home page of another site – deep linking - bypasses home page and links to interior page – framing and inline linking - results of external site copied or displayed in frame/window of original site

The decision to go online u Decide purpose u Decide audience u Register domain name, create website u Implement technical protections u Know what laws apply u Know what ethical issues apply u Seek advice (colleagues, professional societies, lawyers) u Have a go. .

Thank you www. wipo. int lucinda. jones@wipo. int