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Rights + Justice

Know Your Digital Rights, Photographers

You want your shots seen and used. But Creative Commons and copyright have you confused. Read on.

Fabiola Carletti 19 Apr

Fabiola Carletti is a journalist in Vancouver pursuing a Masters degree in journalism at UBC. She completed a practicum with The Tyee during the Olympics.

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Photo courtesy Justin Langille from the Tyee's 'Your BC' Flickr pool.

Lewis Kelly sat in front of his computer drumming his fingers on the desk. The university student wanted to change the copyright settings on his Flickr pictures, but the transition wasn't as straightforward as he'd hoped.

"Why is this so confusing?" muttered Kelly, who goes by the username oncethiswas on Flickr. "The interface is so counter-intuitive."

Kelly had started by clicking on the help button, but the drop menu didn't mention copyright settings or how to change them. Next, he went to the FAQ page, where he was confronted by 33 different categories of questions. Eventually, he found something that looked promising: "How can I copyright my photos?"

He read that in most parts of the world, including Canada, creators are automatically granted copyrights to their photos, all rights reserved. But Kelly, who has a nascent interest in contributing to the intellectual commons, did not want all his rights. He wanted something other than the familiar circled C beneath his pictures, and Flickr -- a powerhouse of photo sharing -- seemed an appropriate place to waive some of his rights for the benefit of others.

In Canada, Flickr is the most popular website that is expressly dedicated to storing photos in image galleries (The Tyee has its own 'Flickr pool' of readers' photos of B.C.). More generally, the site is just shy of the top 20 most visited websites in Canada, ranking 25th in terms of overall traffic. Unlike other photo repositories like Facebook, where many indiscriminately upload photos to share within closed networks of friends, Flickr has more of a reputation for attracting both professionals and talented amateurs with more artistic intentions.

Sharing on your own terms

Since 2004, Flickr has allowed users like Kelly to waive some of their rights through a non-profit organization called the Creative Commons, which aims to expand the collection of creative work available for the general public to build upon and share.

Currently, the Creative Commons offers six different licenses made up of four core elements (please see the side bar). All of the alternatives are more permissive than Flickr's default setting of full copyright. The licenses compartmentalize ownership rights so creators can be specific in the ways they wish to share their rights—but knowing which license to select requires some deliberation.

"I'm not sure which license to pick. There's six of them," said Kelly as he read through the paragraph descriptions of each license. Ultimately, he settled on an Attribution (BY) license, which allows others to copy, distribute, transmit and adapt his photos for both commercial and non-commercial purposes so long as they attribute the work to him in a way to which he consents. It's the most permissive option.

"I've used the Creative Commons and breached copyright so often, the least I could do is remove the threat of litigation for other people who want to use my work," explained Kelly, who admits his dinosaur avatar on Flickr is probably copyrighted.

By making his Flickr pictures more accessible, Kelly has added to a growing resource. There tens of thousands of photos available under Attribution licenses like Kelly's, and hundreds of thousands licensed under all six alternatives.

"We're really happy to finally be able to provide Creative Commons licenses," reads the Flickr blog dated June 29, 2004. "As individuals and as a company we wholeheartedly support and endorse the Creative Commons' mission and hope to help contribute to the preservation and enhancement of creative freedom and personal expression."

But not everyone is as enthusiastic about the burgeoning licenses. Adam Jansen, former digital archivist for the State of Washington, believes creators should proceed with caution. "You own the copyright," stressed Jansen. "So if at some point you choose to waive [your rights], you can. What you cannot do is waive them and then try to get them back."

Jansen is a published author and an international speaker on issues of emerging technologies and electronic records management. He's also a photographer who firmly believes in reserving all rights when it comes to his images. In Jansen's opinion, many people may not fully understand the benefits of copyright and of maintaining control.

"For most people that I know and talk to, the intention is not to put these pictures in the public domain," said Jansen. "It's to share [a photograph] with people so that they can get enjoyment from it too. There's a big difference between sharing it and giving up your rights to it under a creative commons license."

But when Kelly changed his license, he did not put his photos in the public domain because he did not give up all his rights. Every alternative license allows for very specific freedoms along a continuum, and it's not as simple as copyright versus creative commons.

The big picture

Photography is increasingly digital, and it is now possible for people around the world to engage with images in ways that were previously technologically impossible, financially inaccessible and geographically restricted. New tools of creativity and interconnectivity have pushed all the parameters of copyright that were designed for a time when Flickr was nothing more than a typo. Preventing the circulation and modification of images, in a world of screen shots, indiscriminate search engines, and photo-editing tools, is nothing if not daunting -- but where some people see unprecedented challenges, others see unparalled possibilities. "We need to maintain, in copyright law, an appropriate balance between the rights that we protect and the interests of the public to engage with the protected works," said Carys Craig, an associate professor that lectures on copyright at Osgoode Hall Law School. "The limits are every bit as important as the rights."

In a podcast entitled "Who Owns Ideas?" CBC producer Jim Lebans describes the situation succinctly: "It's been called the copyfight. On one side we've got people who think that we need stronger copyright to prevent the theft of their property, the expression of ideas. On the other are those who think that we need, if anything, less regulation of copying. They want us to be able to make the most of the new tools of creation and communication that the Internet age has given us."

The Creative Commons aims to provide alternatives for creators that do not want to reserve all of the rights to which they are entitled under full copyright. The U.S.-based organization caters to what they see as an unmet demand for licenses that signal to the public that only some rights are reserved, or in rare cases, that no rights are reserved.

"Many people have long since concluded that all-out copyright doesn't help them gain the exposure and widespread distribution they want," the Creative Commons website states in their FAQ section. "Many entrepreneurs and artists have come to prefer relying on innovative business models rather than full-fledged copyright to secure a return on their creative investment. Still others get fulfillment from contributing to and participating in an intellectual commons [...] Creative Commons intends to help people express this preference for sharing by offering the world a set of licenses on our Website, at no charge."

How many Cs in your comfort zone?

Fred Benenson, who goes by mecredis on Flickr, grapples with the complexities of copyright law on his self-titled blog. Benenson is a photographer who works for the Creative Commons and teaches a course about copyright at New York University.

Since using alternative licenses, Benenson has been pleased to see his photography appear in places like Popular Science and the Wall Street Journal. "It has since become very clear to me that there is a continuum, and that the more liberally you release a work, the better it can flow into the world," he wrote in a blog post. Benenson goes on to describe several legal parameters about which he is unclear, and the difficulties of explaining concepts like ShareAlike to others, many of who ignore conditions that they do not understand.

"If someone takes my photo from Flickr [which was under an Attribution-ShareAlike license] and uses it in a mainstream newspaper, are they obligated to release the article that uses the photo under [the same license]...? The license states that derivatives must be licensed and shared in the same way, but there is a split circuit decision on whether a derivative is created by re-contextualizing a photo."

But instead of becoming more reclusive in response, Benenson has become more liberal. He has pared down his license even more, putting thousands of his photographs under the most permissive Attribution (BY) license, and has stated, " can mash up my photos, remix them, use them commercially, and do basically whatever you want..."

Benenson is fully comfortable with sharing his rights, a disposition that comes as a result of many years of deliberation and an underlying philosophy that "human creativity doesn't really need a legal structure to motivate it," he explained to a roomful of students at NYU.

But not everyone is as conversant with the nuances of copyright, nor as certain of their stance.

Mike DeBiasio, whose Flickr name is his full name, doesn't find Flickr very instructive for the uninitiated: "They do provide an easy way to apply CC licenses to your images once you inform yourself about the whole issue." But becoming informed is not a passive process.

"To go in and [change your copyright] requires the effort," said Gerald Deo, a photojournalist who goes by the Flickr name heeeraldo. "From there it's just an issue of how much freedom you want people to have with your works."

Deo does not upload the pictures he takes for his student newspaper or anything he has been paid for, but he does make many high-quality pictures available under an Attribution-Noncommercial-ShareAlike (BY-NC-SA) license. Although he maintains most of his rights, the absent element is NoDerivatives (ND), meaning others are free to alter his pictures for non-commercial purposes so long as they credit him and share the result under the same license. Deo referred to a blog called Devil's Advocate, where one of his pictures has been lampooned. Although the blog itself pokes fun at groups with which Deo is affiliated, the photographer doesn't mind.

"I think part of letting go of some of the hard control of where your work goes is to accept that it might end up somewhere that you're not entirely comfortable with," said Deo when presented other scenarios. "I think of it as journalistic karma. I put my work out there so that people are free to play with it and hopefully do the right thing. And when the time comes that I need to get someone else's work, it's there." DeBiasio's disposition is different: "[I chose] no derivatives because I don't want people editing my images without express permission, mainly because an image might be altered in such a way as to take away whatever meaning I intended with the photo," he said.

Still others would rather retain their full rights and avoid the nuances all together.

"I don't feel comfortable with people using my images," said Danielle Lorenz, whose Flickr name is her full name. "But I suppose it all depends on what the individual wants. Some people just want to get their work out there, and don't care whether or not it gets credited or altered, which is something I'm apprehensive about."

Who can © clearly now?

While Benenson encourages others to "do basically whatever [they] want" with his photographs, Jansen doesn't even put his photographs online.

Still, both men have something in common: they use copyright. Works licensed under the Creative Commons are still licensed in some way, meaning they are not completely free works within the public domain. The six Creative Commons licenses facilitate copyright management. They are not, as it were, anti-copyright.

Importantly, it's actually really difficult to surrender all rights and put works completely in the public domain before legal copyright expires -- which is 50 years after the death of the author in Canada.

"Many legal systems effectively prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about contributing a work to the public domain," according to FAQ page for the "no rights reserved" option.

That's right, the Creative Commons has come up with a license for those who are doggedly determined to relinquish their rights as completely as their national laws permit. "...We believe it provides the best and most complete alternative for contributing a work to the public domain given the many complex and diverse copyright systems around the world," they explain. This kind of an option makes Benenson look selfish.

Creative Commons for Canucks

Although Flickr was originally developed in Vancouver, it became subject to American Federal law when Yahoo Corp. purchased it in 2005. The Creative Commons is also based in the United States. Not surprisingly then, both websites are written with an American audience in mind.

Perhaps the hardest rights to relinquish in Canada are moral rights, which are distinguished from economic rights. Moral rights, or the creator's right to the integrity of their work, cannot be assigned to another person. They can only be waived, and often only partially.

"This is the right that protects an author's work from mutilation or distortion," explains the Canadian version of the Creative Commons website. "Regardless of whether the economic rights in a creative work have been sold, the work cannot be so modified as to constitute a mutilation or distortion that would harm the honour or reputation of the creator." And that's honour with a 'u.'

Such country-specific differences may be easy for the average Canadian photographer to overlook. Although there is a great deal of overlap between Canadian and American copyright laws, the two are not interchangeable, especially when it comes to the unchartered legal landscapes of the Internet.

To paraphrase law professor James Boyle, 25 to 40 years ago, ordinary people did not have to worry as much about violating copyright, and creators were not so vulnerable to having their rights violated. People could only infringe upon exclusive rights with things like printing presses and broadcast towers -- resources to which the average person had no access. "Fast forward 40 years and now it's almost impossible for most of us to go through our day without creating copies," Boyle explains. "It's as if we had a set of landmines that previously could only be set off by tanks and now suddenly they've been made more sensitive and individual footsteps can set them off."

In such a volatile landscape, photographers on Flickr have many options. Will they tend toward treading softly or setting off the bombs?  [Tyee]

Read more: Rights + Justice, Media

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