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UK Government passes “Instagram Act” (theregister.co.uk)
138 points by choult 1730 days ago | hide | past | web | favorite | 79 comments

Damned if you do, damned if you don't!

If you pass more stringent copyright laws, people roast you on a pitchfork for fucking creators over by restricting how they can use other people's works.

If you pass looser copyright laws, people roast you on a pitchfork for fucking creators over by not restricting how others can use their work.

In such a situation, where the geek world is the first to shout abuse at politicians the minute they make any changes, it's no surprise that the smoother-talking Disney lobbyists win.

As a community, we have got to get our shit together and start having a clear position. For myself, I think any step that weakens copyright is good at this point, so I think this is a great move. It opens up a huge realm of creative activity.

Now they just need to apply this to music, movies and text too.

I think the community position is clear - violating copyright for personal, non public, non profit purposes is OK. Exploiting others work for commercial gain without permission and compensation not OK. What's so hard about that?

Well, the stated purpose of this law is to make it easier to exploit the work of others for commercial gain without permission and compensation (edit: actually it seems you have to pay, even if it's an orphan work and the money is kept for rights-holders who come out of the woodwork later, which further reduces the chance of someone stealing your facebook photos).

And generally the community are alright with that because they're targetting "orphan works", stuff that got swept up into hundred year plus copyrights just because Disney didn't want to lose Mickey. But is now "culture" or "history", yet it is presumed to be owned by someone or something that can't be traced and found to ask permission due to death, bankruptcy, poor recordkeeping etc.

The people protesting this law seem to be making the dubious claim that you can now steal the copyright to anyone's digital media (film, music, photo, books) you find online just by stripping some metadata. This seems, on the face of it, absurd. And if it's true then there will be better things to steal than someone's facebook photos. Why would those big nasty US coporations steal your family photos when they could steal stuff with actual value from other big nasty US corporations?

edit: a UK government response to previous scaremongering from the same source:


Facebook photos would be/are extremely valuable to advertisers. And very few would have contact metadata attached, which is irrelevant anyway after your mate reposts the image to imgur for a Reddit post.

And i guess they would rather steal from someone who can't fight back than an entity that owns an army of lawyers.

"No contact metadata" will be mostly irrelevant in the next years, when computer vision along with some automated social engineered photo correlation will be able to cleanly identify individuals out of photos, linking to their social network profiles.

The photographer holds the copyright, not the people depicted in the photos (except when they're the same person, obviously), so that wouldn't help a lot. Not to mention all the pictures that don't have anyone in them, of course.

Wait, it's one thing for someone to take photos of their friends and post to Facebook or Instagram. If anyone were to use them for profit however, do the people showing in the photos have no rights? I'd think that it's not actually as simple as you put it, but that the people appearing on the shot have no reasons normally to go after their rights, but in reality they usually didn't give written consent for being shot (I don't think posing for a photo qualifies as legal consent for the photo then to be used however the photographer wants, much less by third parties.)

Well, as I said, the people in the pictures don't have copyright.

That said, they might have personality rights. These vary a lot between jurisdictions, even inside the US: http://en.wikipedia.org/wiki/Personality_rights

I think the community position is clear - violating copyright for personal, non public, non profit purposes is OK. Exploiting others work for commercial gain without permission and compensation not OK. What's so hard about that?

Well, it substantially reduces the value of copyright for a start.

Of course the community tends to favour such a position if you look at some sort of general average. The average person probably doesn't work in a creative industry where IP is how you pay the rent, so if copyright isn't effective it's nothing but upside for them, but the average person also doesn't care about redistributing works for profit, so they don't mind rules that restrict those who would.

Whether making law on the basis of the self interest of the largest single group within society is a good idea is an entirely different question. It's probably the strictly democratic thing to do, but remember the old joke about democracy being two wolves and a sheep deciding what's for dinner.

Exactly. This is all you need to know about copyright. Reality on the ground always trumps theoretical reality, so everyone can stop hyperventilating and breathe normally. Abolition of copyright would heavily favor entrenched forces.

Here's what the position should be. You're free to use other people's stuff that appears online, but not for commercial purposes.

Putting someone's picture (that happens to be on the web, publicly available) in a post on a site, where you happen to have ads does not count as "using your image" for commercial purposes. Putting your image in an ad would.

My point is that you shouldn't be able to just claim having copyright over someone's work, and then profiting from it as your own. I shouldn't be able to take the HD version of Iron Man 3, and then sell it to my local cinema. That's as far as copyright should go.

>Putting someone's picture (that happens to be on the web, publicly available) in a post on a site, where you happen to have ads does not count as "using your image" for commercial purposes.

To me it does. I don't understand the operational difference between putting someone's image within whatever div has been designated the "ad" div or outside of it, other than location. If I don't understand it, surely teams of lawyers in opposition can create complicated rationales that justify any parties' usage of any other parties' work based on how much money the first party has to spend on lawyers.

The difference is that if someone's image is in the advertisement, there is an implicit message that this person uses/endorses whatever the advertisement is proposing. Whether or not this difference is material is an exercise for the reader.

Does commercial purposes count for supporting non-profits that you may disagree with? There is nothing special, nor onerous, about commercial activity that should grant it any special privileges, nor penalties.

Similarly, how about context. If there's a photo of someone on the web and you can't find the owner/subject's contact details you could put this in a post about STDs; if that post becomes popular the subject's image is then associated with the content despite them having no relation to the subject matter and not having given their consent, which could lead to awkward scenarios for that person.

(I won't say a Facebook photo as this will be in the uploader's album, therefore associated with their account and thus can be considered non-orphaned).

How about I use those photos in my ad-supported private blog, or my ad-supported private youtube stream. Or in some way that indirectly increases my profits in the future (say buying fame instead of money)?

Does that count as fair use?

(PS: genuine question)

If you're selling advertising space then in UK and US copyright law that would likely be considered to be commercial use. That doesn't mean that it's not allowed or [in the US] Fair Use but it's a strong mark against that conclusion.

There can be moral rights issues in "framing" work with your advertising too that could trump any conclusion that would otherwise fall as Fair Use.

Running ads means you make money. That's commercial just as much as charging people money directly. Whether the user pays with currency or with privacy or with brainwashing, they pay nonetheless so there isn't much distinction between the two.

There is an issue with this though. Lots of sites run ads to pay things like hosting bills. If hosting costs $100/month and you pull in $50/month in ads, this is generally not what people think of when they think of a 'commercial enterprise,' even though it's the technical definition. Granted, a "trust me, I'm not making that much money" statement from the owner is pretty worthless to.

The problem with this is that it weakens copyright from the wrong direction: it makes more content available to big corporates without them having to give anything back.

copyright reform that takes away from the people and gives more to the big corps? that's a shocker.

I agree that it might open up a "huge realm of creative activity" on the amateur or cottage industry side, but it also removes a lot of content creators' rights when larger corps who can afford licensing fees rip us off.

I'm not the biggest supporter of modern copyright - I love what I understand to be the spirit of it, but not this "death + x years" crap - but it needs to work both for the little guy and the big guy.

Pretty much all damage to copyright at this point is good, if only for setting the precedent that copyright is something that you can damage.

This sounds like it's orphan works legislation. Apparently The Register feels as though the standard created for what constitutes an orphan work is too low. Can anyone who understands UK law actually clarify what it actually means? The article reads as way too sensationalist to feel credible here.

The Register (and this author especially) are rabidly pro-IP in a way that you'd think would be out of place on a tech site.

As far as I can tell, they're against orphan works laws in any shape or form. Whether they're taking that stance to protect the semi-professional photographer as they seem to be claiming is another matter.

Any (possibly valid) criticisms of the actual form of this law (and similar outrage over one in France) seems to be incidental to the fact that they don't want any weakening of IP to occur at all, ever.

Note that the author of that piece - Andrew Orlowski - is a man with an axe to grind with regard to copyright reform.

This is a significant factor to consider. Read his other work.

The Register is also rabidly hostile to Wikipedia - and I find it hard not to leap to uncharitable interpretations of their motives (as paid journalists)

I don't understand why this is being represented as "Your pics can now be stolen" - a key proviso is that they have to do "a diligent search".

Google Images (for one) allows you to search by uploading a photo, and I can't remember the last time I was able to "beat" it by downloading a photo that it couldn't identify the source of.

If you're a pro and want your photos to stay yours, put it where Google (or whoever) can see it and it if somebody steals it, you have every right to sue them for failing to do their due diligence.

Am I missing something?

Am I missing something?

Yes: not all copyrighted works are freely available on the Internet. Indeed, it is the ones that are not that are probably the most important to protect in terms of the copyright holder's legal rights, and as a matter of practical reality, putting such things on a publicly available site might substantially reduce their actual value.

That tends to lead into the "so just register it with my central archive instead" argument, which effectively reverses the automatic granting of copyright that has been established for many years now and imposes a potentially expensive burden on exercising your basic legal rights under copyright law.

Despite Google Image search existing, perhaps there's still an opening for a site where you register your work; thus creating an easy place for people to check when looking for owners (i.e. if an image is used all over the web Google may return thousands of results leaving the originator hidden several pages into the results; assuming the places which have used this content haven't provided an easy means to get back to the original / haven't included copyright info this may be hard to track). Image search engines could also use metadata from this site to provide a side bar summary about the image's ownership and licensing info.

Yes. The author is Andy Orlowski...

To be clear this covers all creative works, not just images. Orphaned works will not become free, they will require a paid licence. I'm not sure what to think of it.

Bill documents — Enterprise and Regulatory Reform Act 2013: http://services.parliament.uk/bills/2012-13/enterpriseandreg...

Orphan Works impact assessment: http://www.parliament.uk/documents/impact-assessments/IA12-0...

I do not get the outcry over this. This is a Good Thing with capital letters.

We as a whole species are currently producing more content than the sum of humanity prior to the 20th century per day every day. Content production has become so cheap, in fact just the other day I wondered if "from each his own ability; to each according to his need" can be rightfully applied yet.

Sure, you say there are moral issues of profiting off the backs off someone's hard works. But such a law allows you to also do the same.

You might say for example, that you don't intend to do the same. Good on ya mate. Then go profit off your own work, and also allow others to profit off your work! This is not a pie that is finite in size. If someone does not intend to profit off their own work anyway, what is it to them then that someone else profits off their work?

That said, I think attribution is still a requirement as we enter the age of digital communism

It's not just profit. Imagine taking a photograph that then gets used to promote a political party that campaigns against your beliefs - you might be happy with that, but I wouldn't be.

While I think you have a valid point, I think it's also useful to separate copyright (which is fundamentally an economic tool, hence the "limited" duration) from other reasons to restrict copying or redistributing material by law, such as protecting privacy rights, trade secrets, genuine national security concerns, etc. Assuming copyright law is the correct tool to guard against these other things, and against the kind of misrepresentation you're talking about, seems to muddy the waters and thus to dilute reasonable but distinct arguments in favour of either copyright or the other protections.

You have a point.

But in my worst case scenario (i.e. I take a picture of a starving African child, and a hypothetical neo-nazi racist politician were to use it in saying "this is what god intends for black people"), there would be a moral outrage on my part. However, I wouldn't be outraged at the free (mis)use.

Rather, the moral outrage would be at the misrepresentation of the photo. That would fall under the likeness laws I believe. The subject of the photos I believe would probably have cause to sue in that case (of course in the case of the starving African child, it probably will not happen)

Perhaps you can think of something worse

>If someone does not intend to profit off their own work anyway, what is it to them then that someone else profits off their work?

I would not want any of my photos or content used without my consent, even if it has nothing to do with profit and money. A while back photo I posted online was used by someone with regard to subject matter that offends me and i categorically disagree with. Thankfully my work is protected by copyright so i was able to use the DMCA to force its removal.

> Sure, you say there are moral issues of profiting off the backs off someone's hard works. But such a law allows you to also do the same.

If i make my living doing photography or some other art form, i don't want to lose income because others are copying my work, nor do i want to profit off of others work because that is not my area of expertise nor likely what i want to do for a living.

This act applies precisely in the case where attribution isn't possible.

> This act applies precisely in the case where attribution isn't possible.

That's the intention. However when the system is "I tried to find out who took this picture, I failed, therefor I can use it freely", then surely that system can and will be gamed badly?

If the judge can find the image in Google, that's not going to end well.

The prosecution would have to show that the defendant could have found that image at the time they searched and that they were negligent (ie not diligent) in the search they performed.

For example a diligent search could be considered to be using a specific service, Tineye say, but another similar service was the only one that had the image. Do you have to use all services to be diligent? That would be great for the service providers as they could charge a lot and the court would be enforcing the use.

How would the prosecution demonstrate that image was available to you? On Google search is personalised - do I need to check all the results returned or just the first 100? Google's dates are notoriously unreliable too; they're certainly not at the level of accuracy needed for a court conviction.

Then there's DMCA ... couldn't you use the DMCA to have the images taken down, then when a prosecutor checks later they won't find them? Or at least they're down long enough that you can get a search notarised in which the images are absent.

DMCA take-down orders are regularly made on flimsier grounds, despite this being technically perjury. Also, google image search and tineye still seem to be surprisingly specialist skills. Average computer users don't know them. Judges ... even less so.

yah I am aware. Orphan works.

I don't understand how it is so difficult to get copyright to work on the internet, it seems like this problem should have been solved by a licensing structure like we see with GPL etc.

Make everything on the web available by default for personal use, but not commercial use. Then have 2 licenses: No, this can't be used for personal use (eg Netflix) and Yes, this can be used for commercial use too. Both should have a modifier for Source must be attributed. Put the creator in control and get out the way. Of course we should allow more fine-grained licenses like we see for source code etc, but the two simple licenses should cover most use cases I think.

Most of what you propose is covered by creative commons. Sadly, in practice, CC is a shitty deal for photography in general.


I guess I was simplifying the issue too much. It could work with adjustments, but I think one of them might be a license modifier for "but contact me first", and due to the reasons you've presented, maybe that should even be a default. That doesn't really remove the friction we have now, and is probably too restrictive.

We need something more granular that people can use, and I'm not at all convinced that exists. Hmm.

> a license modifier for "but contact me first", and due to the reasons you've presented, maybe that should even be a default

now it's the same as "all rights reserved. joe@example.com", and it is the current default.

Couldn't the pool article and the nazi newsletter be considered derivative works? If so one could use a ND clause for the license.

if they drew her a mustache or painted the sperm, then it would be derivative.

Correct - it's not a derivative showing it alongside an article. Derivative refers to making a change to the work itself to create a new work.

Because waaaaaaah!

It is impossible to judge the impact from this rant but I can certainly say that ownership of intellectual property is not a human right. Nor does the Berne Convention hold that it is a human right. Can we please ensure that every human being has the right to life, security, and liberty before we throw in the right to claim the creation and ownership of intellectual property without registration and justification.

This sounds terrible. First of all the use of 'diligent search' in the legislation. What constitutes a diligent search? The worst bit however is that if this turns up nothing the user of the 'orphan' work now has the ability to become the owner of it AND license it to others. As the site says "This gives the green light to a new content scraping industry, an industry which doesn't have to pay the originator a penny." It seems like the government tried to do something good here and really didn't think it through.

The user of an orphaned work can't become the owner - the legislation specifically prohibits granting users of orphaned works exclusive rights. Because of this, sublicencing seems like a non-issue, because anyone who could sublicense an orphaned work from a user of that work, could just directly license it from whatever body licenses orphaned works.

There is a genuine problem with orphan works, but normally (IME) the term refers to obscure or older works where there copyright holder can't be identified or contacted for an extended period. I can't find the final text of this Act on any official source yet, but if the wording "diligent search" is all there is then that certainly sounds a lot like "Well, I Googled for the first two words of the book and couldn't find an obvious owner, so now I can resell it" territory.

What I haven't seen anyone explain so far, and again can't check for myself until the final wording is published somewhere accessible, is what happens if someone starts copying/sublicensing an "orphan" work and then the copyright holder finds out and identifies themselves. In earlier discussions about orphan works, which have been going on for years and covered by several public reviews at this point, this issue never seemed to be dealt with in a satisfactory way.

So Google UK is now allowed to use everyone's photographs (not just thumbnails) and use those photographs to sell ads next to it. How is that right ?

It only applies to orphan works but you can easily and in an anonymous way strip out the metadata.

And companies like Google could take it one step further. All they have to do is start a LLC in the UK for the Google image search part of its business, go to Twitter, Facebook, Flickr, ... take all the photos, strip the metadata, say it was someone else who must have done it, make a lot of money.

So Google UK is now allowed to use everyone's photographs (not just thumbnails) and use those photographs to sell ads next to it. How is that right ?

Google Image Search is already doing something awfully close to that, and the legality of doing so is surely going to be disputed in court sooner or later.

They appear to be bandwidth leaching in a way that has been considered poor netiquette since forever, too. In fact, in an earlier court case in the US the fact that they weren't actually hosting the material themselves even though to a viewer it would look like they were was a key point for their defence.

"For the first time anywhere in the world, the Act will permit the widespread commercial exploitation of unidentified work"

Someone really needs to study the history of copyright.

Man, I'm torn here. Making orphaned works public-domain is really a positive move, but the law doesn't appear to be using a great definition of orphaned if this article can be believed.

It does beg a question, though: I don't live by photography (otherwise my children would be starving) but if I were, wouldn't I put my name and contact into any metadata?

> wouldn't I put my name and contact into any metadata

And then things like CloudFlare+ might optimise the image discarding meta-data during compression of the image, and a person solely relying on the image will not be able to find the creator.

The only option will be to visibly watermark the image with the creator name.

+ I'm not sure if CloudFlare does do this, but something may optimise the image and discard the EXIF or other meta-data.

Watermarks are often removed, via cropping or photoshop. The only solid option of protecting your work is to add it to a copyright registry, which isn't likely to be free.

Well imgur does that and if you have fans copying images to imgur to share on forums as to not ddos the author you might see this problem.

It sounds like the article is saying that many photos will be automatically "orphaned"... Looks like there would be a ripe opportunity for an app (or at least a new feature from Instagram) that registers the IP for your photos automatically... can't be that hard!

Instagram effectively already has that feature - if you post a picture on Instagram, any cursory web search is going to find it, linked to your Instagram account, so it won't count as orphaned. The article's claim that "most digital images on the internet today are orphans" is just nonsense.

Registries for photo copyright already exist.

Online registries, even! Though unless you're semi-professional you're probably not willing to pay the prices to do so:


Seganograhpy to hide your email address in the picture?

The article mentions: "The Act contains changes to UK copyright law which permit the commercial exploitation of images where information identifying the owner is missing"

Does your username in the URL e.g. instagram.com/username, constitute "information identifying the owner"?

The big issue to me is how it applies to photos of people and advertising. If your friend takes a photo of you then dumps it on imgur...and a week later you appear on billboards selling something objectionable...what are your rights?

In practice, does this apply only to pics created by UK citizens ?

If yes, how can they identify the citizenship of the author since we are talking about orphan works ?

If not and it applies to every pics, how does it not conflict with other legislations ?

Would using a reverse image search engine qualify as a "diligent search"?

In principle, I think a law like this in regards to truly orphaned works is not a bad thing, as long as the penalties for abuse are proper (e.g. news programmes trying to credit "YouTube" for something they've ripped off someone else, or newspapers stealing someone's Twitter photos -- where it's entirely clear how to contact the person who owns the photo).

I don't understand how someone can lay copyright claim to a work they didn't create?

I'm all for weakening copyrights. But this seems like weakening it only for the average person, while allowing huge organizations to scoop up any "unclaimed" work as their own -- from which they can then extract rents, even from the actual creator.

Am I misreading this?

So, some third party strips your work of contact information such that due diligence does not turn up any way of finding you, and redistributes it. Can this third party be in any way legally liable for lost income or other damages?

If you make a diligent search a requirement, then the incentive is to make such a search impossible to perform effectively; obfuscate the ownership if you can.

Um, so in other words stop posting stuff on the internet. Period.

Adobe Flash will start becoming popular again :)

We are in the twisted age when a 16 year old, farts in his bedroom and someone buys his ideas for millions of dollars. Or every looser has a mobile phone in his pocket and hopes one day to take "THAT" image which will bring him glory and fame, then we have miserable creatives, who remix everything they can find on the internet and hope that this will make them valuable too. Online community is suffering from hard case of schizophrenia, as at the same time they are consumers and creators. They want to take, but don't want to give. So corporations just use that to their advantage. I would suggest calm the f* down, and decide what you are good at and make money from it, not hope you will one day make it big from being in a right place in a right time. And if you give more than you ask, humanity will only benefit.

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