Bringing your photos to a New Public

18 January 2016

Region: Headquarters

When you put your photographs onto a web site, or post them on social media, what, in copyright terms, are you doing? Once upon a time, many people including me saw this as publishing and you were often doing so under the terms of what is called an implied licence. This implied licence would allow photos on a web page to be viewed by someone else without infringing your copyright, and those things necessary for that to happen were allowed while other things were not.

Then came European legislation that gave a blanket exception (to copyright infringement) for anything that was incidental to viewing the web page, and was technically necessary. This would include holding the data for a photograph in the computer's memory, for example.

So far, so logical.

In 2001, new European legislation came out which introduced the concepts of communication to the public and making available. These applied to electronic communications and so your photos on a web site would come under this new right because (to use the EU directive's words) 'members of the public may access them from a place and at a time individually chosen by them'. It became UK law in 2003 as section 20 of the copyright act.

Then, in 2014, the European Court of Justice (ECJ) gave judgement in a case regarding hyperlinking. You may have thought that, since the whole raison d'être of the world wide web was hyperlinking, this was something of a no-brainer. A web page exists and you link to it if you want to. You could even say there was another of those implied licences that said you could do this.

This ECJ ruling was trying to resolve a conundrum, whereby the web depends on hyperlinking but, in that 2001 directive, the rights owner had the right to control an 'act of communication to the public', which a hyperlink was deemed to be. To resolve this, the ECJ said that yes it is an act of communication to the public but there is no new public involved. The same people who could access the web site itself by typing in the URL could do so by following the link (my interpretation).

So far, so logical.

A potentially worrying corollary of the new public logic is that someone can now inline one of your photos on their own site (that is, include an image tag that calls up the image file from your site so that it becomes part of their page) and claim that there is no new public, so this is OK. Previously you could have argued that under the implied licence under which you put your photo on the web, this was not permitted. If the person using your photo includes a credit for you they are not even infringing your moral rights.

I think this situation, if I have interpreted it correctly, is an anomaly that should be addressed and I have raised it during copyright meetings on behalf of photographers.

Andy Finney is the Society's representative on the British Copyright Council