RE: filmscanners: Importance of Copyright on Images

["LAURIE SOLOMON" <LAURIE@advancenet.net>]

>Virtually nothing is in the public domain, and I agree with those who
object to
>the phrasing of the search engine's warning.  Saying that an image "might
be
>copyrighted" implies that copyright protection is the exception to the
rule,
>when in fact, essentially everything is copyrighted, unless it is
explicitly
>released to the public domain by the copyright holder, or unless it has
entered
>the public domain through expiration of copyright.  And in some
jurisdictions a
>copyright holder _cannot_ release his work entirely to the public domain;
it can
>only enter the public domain when the copyright expires.

Firstly, on the face of it, this does not serve as a valid counter-argument
to my statements since, as you quoted, I made no claims as to the amount of
material which is actually in the public domain but to the fact that there
*might be some* that is and that certain sites which are being cataloged and
indexed *may* specialize in those sorts of materials.

Secondly, your statement has some apparent (but not literal) contradictions
which in effect underscore and validate my point when you point out the
sorts of exceptions that might exist to materials that are copyrighted.
Now, to be sure, what is or can be public domain materials may very well be
determined by the statutes in local national and regional jurisdictions and
hence vary; but that is not to say that such materials do not exist
virtually or otherwise.  All photographic images taken as work for hire by
the U.S. government is public domain (e.g., NASA images, images taken by
military personnel as part of their function as a member of the armed
forces - even if the public appearance and use of said images is restricted
by security rules and statutes, some scientific images and papers created
under the auspices of federal contracts in government labs, etc.  I am sure
that the same is true for other countries and governments.  This makes up a
healthy body of public domain materials in and of its own right.  Copyright
expirations also account for a significant body of public domain materials
and images around the world.

>So the search engine should really be saying "this is copyrighted material"
(the
>exceptions being practically nil).

While it may or may not be the case that the amount of non-copyrighted
images and materials is great as compared to the total body of materials
generated is arguably debatable, but that it is "practically nil" is at best
an overstatement and, in my opinion, inaccurate in that many of the images
and materials within that "practically nil" category are very significant
historically and in terms of their rates of use and reproduction.

Jumping ahead to your last point.

>Copyright is the default when a work is created.  Therefore all works
should be
>treated as protected by copyright until and unless the absence of such
>protection can be established.

True enough under current copyright laws and conventions; but that has not
always been the case.  It is not true under the older statutory provisions
of copyright laws - at least in the US.  Moreover, it can always change in
the future.  However, your point is taken.  But from a practical point of
view, since there are and will be web sites on the internet to cover
materials from all periods and regions, it may just be more practical for
these search engines to caution that the materials might be copyrighted
rather than asserting that they are.  The inference that to say *might*
implies that the materials in all likelihood are not is quite an inferential
leap which could just as easily be made in the other direction.  As you
yourself noted elsewhere, those who see a cautionary notice of either
variety and are predisposed out of deliberate intent or ignorance to steal
and use the image will not be stopped from doing so by the mere display of
either cautionary notice.  Those who regularly deal in the purchasing and
licensing of materials for reproduction and commercial uses tend to be on
the cautious side, if they are legitimate and respectable agents, and assume
that they need to get permissions for the use of any materials they want to
use until notified otherwise regardless of any cautionary notices posted on
or by a search engine or web site.

I suppose that search engines could argue that to put any cautionary notice
under your arguments is unnecessary since everyone knows to assume that
everything is copyrighted from its very creation so there is no need to even
mention the notion of copyrights.  Of course, we all know that such
knowledge and understanding is not universal or even widely held and
understood among professionals let alone laymen.  I would suggest that the
minimal cautionary advisory warning that the materials "might be" or "could
be copyrighted" is as effective and as a more unqualified and assertive
advisory notice  to the effect that the materials "are copyrighted."  I
doubt that most people seeing either type of notice do a linguistic analysis
of the words so as to make any inferences at all as to if the materials
presented are or are not actually copyrighted - and for most viewing such
materials on the web, what the notion of copyrighted means or involves.

Of course, if we want to throw pragmatics to the wind and really pursue
copyright protection, we could insist  that all uses of any images by web
sites or elsewhere contain, as part of their copyright notice, the name, and
current postal and internet address and telephone of the copyright owner so
that the viewer can contact them to get permissions should they want to use
the materials being displayed and /or cataloged. Or for that matter, maybe
the search engine should include cautions about defamation of character or
invasion of privacy when displaying images of recognizable people or other
liability cautions when it comes to images displaying company logos.
However, if one starts insisting on what should or has to accompany the
thumbnail images being indexed by the search engines, one can expect to be
charged by those engines to have one's images included.  This would give the
owner of the materials the right to say what is to be included with each
item by way of information and the right to decide if they want their
materials included or not.  It would also give the search engine the right
to determine whose sites and materials it wants to use or let be in its
catalog and under what conditions.  However, I assume the cost/benefits of
such an arrangement would be unacceptable to both the material owners and
the search engines.

With respect to your middle points, I essentially have no problem with them
substantively with respect to many, if not most, of the royalty free images
being copyrighted, although I probably disagree with you as to their rarity
( most amateurs hold copyrights to their images but are perfectly happy to
let anyone use them in whatever way they wish as often as they want for free
with no remunerations or royalties required for purchase or licensing; and
many of the web sites are those of such amateurs).

But, to use your words, "in any case," if these are copyrighted but are
royalty free and do not require permissions, there is no practical harm done
in effect by merely suggesting that the work may be copyrighted rather than
stating that this work is copyrighted since the whole commercial point and
purpose of copyrights does not really exist (the same sort argument you make
when you say, "If the engine says it is copyrighted and it is public domain,
no big deal, since there is no owner whose rights are being infringed.")
Recognize that I am not saying that these are illegitimate argument, but
that I am saying that they are pragmatic arguments.  And in either case,
arguments that a search engine might very well make for seeing no practical
need to make a stronger cautionary advisory than that they might be
copyrighted since in either case there is no economic interests to be
protected which is what the copyright protection is all about legally in
most jurisdictions (maybe excluding France and those areas that base their
law on the French model).

With regard to your point, " And assuming fair use is also highly
inappropriate, since the cases of fair use of an image represent only a very
tiny fraction of all possible uses of an image, despite the unjustifiably
optimistic viewpoints of
some image users," I agree that many users and even non-users have no
knowledge of what fair use means and entails and therefore hold as you say
"unjustifiably optimistic viewpoints" of what is and what is not fair usage.
Moreover, they probably do not care to know or understand the notion.  I
disagree with your assertion as to the proportion of actual fair use cases
there are to the total number of possible uses in so far as I doubt if
either of us actually knows the actual empirical figures involved or when a
usage constitutes a fair use versus a commercial use since that is often
determined by courts on a case to case bases when disputes arise of the
distinction and what gets classified in actuality as what.  However, once
again from a pragmatic standpoint, it could be argued that we are not
talking about actual cases of fair use against all possible uses of an image
but we are talking about all possible cases of fair usage against all
possible uses of an image by the search engines actual or projected audience
of actual or projected engine users.  In which case, the number of fair use
cases even if small may very well make up a significant portion of the
search engine's clientele's usage of images so as to be more practical to
merely provide a modest cautionary advisory about copyrights than a stronger
more assertive one, since again the meaning of the copyright is not
commercial in terms of acquiring permissions and paying monies but ethical
in terms of giving photo credits.

At any rate, I disagree with your point which others also hold that the
cautionary advisory that something might be copyrighted necessarily or
practically implies that it probably is not copyrighted.  Given this, which
was not originally a literal part of the substantive discussion, I was only
offering a set of practical reasons that might be offered to justify using
*might be* rather than *is.*  I did not assert that they were my reasons or
that I totally accepted or was comfortable with them; nor did I assert that
anyone else has to accept them on face value in an unqualified manner.  All
I had hoped for was that they would be taken as legitimate and reasonable
alternative pragmatic justifications that might underlie the reasoning
behind the search engine doing what it did in terms of cautionary statements
and notices.


-----Original Message-----
From: owner-filmscanners@halftone.co.uk
[mailto:owner-filmscanners@halftone.co.uk]On Behalf Of Anthony Atkielski
Sent: Sunday, September 09, 2001 5:58 AM
To: filmscanners@halftone.co.uk
Subject: Re: filmscanners: Importance of Copyright on Images


Laurie writes:

> However, it just might be the case that the
> images on a given site are not privately
> owned images but images in the public
> domain ...

Virtually nothing is in the public domain, and I agree with those who object
to
the phrasing of the search engine's warning.  Saying that an image "might be
copyrighted" implies that copyright protection is the exception to the rule,
when in fact, essentially everything is copyrighted, unless it is explicitly
released to the public domain by the copyright holder, or unless it has
entered
the public domain through expiration of copyright.  And in some
jurisdictions a
copyright holder _cannot_ release his work entirely to the public domain; it
can
only enter the public domain when the copyright expires.

So the search engine should really be saying "this is copyrighted material"
(the
exceptions being practically nil).

> ... or that even if copyrighted they are
> royalty free images ( sort of like freeware)
> that anyone can use in any manner or for any
> purpose they see fit ...

Images like that are almost as rare as public-domain images.  And in any
case,
they are still copyrighted, so the misleading notice mentioned above remains
inappropriate.

> I would suggest that this is why the *might*
> be copyrighted qualification is used rather
> than the *is* copyrighted caution.

If the engine says it is copyrighted and it is public domain, no big deal,
since
there is no owner whose rights are being infringed.  But if the engine
implies
that it isn't copyrighted when it is, the owner of the copyright may have a
legitimate gripe about the deliberately misleading nature of the message.

> Moreover, some images even when or if copyrighted
> do not require permissions or even photo credits for
> certain types of uses ...

But they are still copyrighted, aren't they?  So implying that they are not
is
still inappropriate.  And assuming fair use is also highly inappropriate,
since
the cases of fair use of an image represent only a very tiny fraction of all
possible uses of an image, despite the unjustifiably optimistic viewpoints
of
some image users.

> Thus, noting that they might be copyrighted
> rather than that they are may be all the caution
> that is required or appropriate.

Copyright is the default when a work is created.  Therefore all works should
be
treated as protected by copyright until and unless the absence of such
protection can be established.