Transmission of Digital Photos in Global Cyberspace and (Mis)Claims of Copyright
What if someone from a foreign country falsely claims to be the creator of your photo and goes after “infringers” in that country?
Social media and the Internet have enabled the transmission of potentially copyrightable works at unprecedented speeds.
By: Kan Ni, Staff Member
On April 10, 2019, for the first time in history, humankind was able to capture through a virtual telescope a direct image of a black hole. The image was soon widely disseminated on social media around the globe. Social media users in China, however, were surprised to find that Visual China Group (“VCG”), one of the country’s largest photo and media footage providers, had placed its logo on the photo. VCG claimed that the image was an “editorial” one and thus whoever wished to use it for commercial purposes would need permission from VCG.
VCG’s claim triggered a tremendous backlash on Chinese social media, which resulted in Chinese authorities initiating investigations into the company’s business. Noticeably, the authorities discovered (and VCG acknowledged) that there were many noncompliant images on VCG’s website which it claimed to have been provided by contractors. As for the black hole photo, the European Southern Observatory — the original author of the image — stated that VCG had not made contact about the image and that the image was under a “Creative Commons Attribution 4.0 International License” and “may on a non-exclusive basis be reproduced without fee provided the credit is clear and visible.”
The Cyberspace Administration of China also found that VCG “engaged in Internet news information services without obtaining the correct licenses” and to have “collaborated with international news services without conducting security assessments.” Subsequently, VCG temporarily shut down its website for “self-rectification.”
It is now known that between 2013 and April 2019, VCG and its subsidiaries were involved in more than 10,000 copyright-related disputes, totaling damages of around 1 million U.S. dollars (6.24 million Chinese Yuan).
VCG also partnered with Getty Images, Inc., a major British-American stock media supplier, and purchased the photo library business owned by Branded Entertainment Network (formerly, Corbis Entertainment). Currently, on the VCG website, users can access media content provided by these two American companies. Like its Chinese partner, Getty Images has been involved in allegations of improperly claiming ownership over works in the public domain and duping customers into paying for fictitious licenses, though Getty’s disputes tend to involve only domestic entities.
VCG’s claim over the black hole photo sheds light on a highly entangled area of copyright law and international law: the transmission of digital contents in global cyberspace and the (sometimes false) copyright claims that may arise. While copyright law has traditionally been enforced primarily within national boundaries, international copyright conventions and treaties have expanded the national schemes of treaty member countries to afford protection for works created by authors in other member countries.
One major copyright treaty is the Berne Convention for the Protection of Literary and Artistic Works, to which 179 nations are contracting parties. A fundamental principle in the Berne Convention provides that works originating in one contracting state must be given the same protection in every other contracting state as that other state would grant to works by its own nationals. The convention also dispenses with any formality requirement, and the copyright protection is to be independent of whether such protection formally exists in the work’s country of origin.
Apart from these basic principles, the Berne Convention also specifies the minimum standards of protection for copyrighted works as well as instances where works can be used without the owner’s authorization under certain “free use” limitations. For digital content, the WIPO Copyright Treaty, a special agreement under the Berne Convention, extends copyright protection to computer programs and databases.
In addition to the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), acceded to by all 164 member nations of the World Trade Organization (WTO), provides a more sophisticated framework for the enforcement of intellectual property rights. The TRIPS Agreement includes a requirement for fair and equitable civil judicial procedures and rules for evidence, right of information, and indemnification of the defendant. Furthermore, the Agreement details a scheme for judicial authorities to issue injunctions, award damages, and implement other remedies, including disposal or destruction of infringing goods.
Despite these international agreements, the challenges posed by digital photos are manifold. First, it is difficult to determine whether a particular photo is copyrightable in the first place, for in countries such as the United States, photographic works must pass a certain originality bar to be copyrightable. Even where there is a copyright, the right may be a thin one and afford only limited protection. Such indeterminateness may lead to confusion ex ante for both creators and potential infringers regarding whether a particular photo may be subject to copyright protection.
Second, the authorship of a particular photo can often be difficult to trace on the Internet and social media, which enables potential abusers to gain ownership as the first claimant. Chinese copyright law, for instance, includes a presumption of authorship by “[t]he citizen, legal entity or organization whose name is affixed to a work” in the absence of contrary evidence.
Third, the creation of exclusive or non-exclusive licenses can be difficult to track, further diminishing the costs for a false claim of ownership. Although investigations may ensue in high-profile or high-stakes scenarios, such as VCG’s claim to the black hole photo, in the vast majority of cases, unwitting infringers can hardly be expected to have the knowledge or resources to verify fully the validity of a claim demanding a removal of a photo or only minor compensation.
Fourth, unless the work in question contains considerable commercial value, very few creators would bother to monitor the transmission of their photos in other countries, especially in countries which are not their target markets or audiences.
Finally, the distance between the incidents of infringement and the true, original author may create difficult questions in applying traditional theories of copyright to the case of digital photos. For instance, the “moral” theory of copyright justifies copyright as protecting the fruit of one’s labor. Under this theory, one may argue that a false claimant of copyright ownership taints the dignitary rights of the original author. However, one could also argue that the imposter effectively places many potential foreign infringers on notice, thereby propagating the author’s natural right over their work in an alien land.
On the other hand, the economic theory of copyright conceptualizes copyright as an incentive for potential authors to create works beneficial to society. For an incentive to function, however, there must be proximity between the realization of profit and the creation of the original work, as well as the subsequent effort to enforce the protections granted by law. In cases where the potential infringement occurs in a market and jurisdiction so far away from the original author that she would not bother to police the dissemination of her work, the imposter can reap economic benefits without the costs of the author’s intervention. Therefore, the economic incentives provided by a certain copyright regime will lose much of their relevance and efficacy, making the dissemination of digital photos a particularly vexing case even in the theoretical sense.
Kan Ni is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He obtained his M.A. from Columbia University in 2019 and B.A. from Fudan University in 2018.