10 February 2016

Copyright is a mess. How did the mess arise? How might it be resolved?

This article takes a walk through events that have opened up opportunities for consumers to access, view and buy or license copyright work. But also where those same events have led to confusion and a copyright mess for consumers, Creators and brand owners alike. It concludes with actions that could significantly assist with resolving some basic copyright issues and lead to additional income opportunities.

©Copyright Maxine J Horn: usage terms Http://c-b.me/3gw


Copyright law has and will continue to evolve, gradually. However, aside from a few complexities due to legal nuances Country by Country, and greater levels of complexity in USA and China  (the only two Countries with formal copyright registration systems) - the law is not necessarily the core problem.

That said, a copyright law decision* taken in 1989, just 4 years before the birth of the worldwide web in 1993, has led to some of the fundamental problems copyright holders, businesses and consumers face today. *See Legislation section for details. 

Copyright dates back to the 1710 Statute of Anne introduced with a simple purpose - to enable Creators to earn an income from their work.

In that regard nothing has changed.  

The change is the way people and businesses transact in a digital age.

The enablers of change on a mass scale were the Internet and importantly the release of the html coding language written by Sir Tim Berners-Lee, which led to the birth of the World Wide Web in 1993.

The Internet and the www are two different things.

Put simply, the Internet is a network of networks that enable networks across the world to connect to each other via all manner of hardware and software. When you send emails, text, files and other data you are using the Internet. When you are connected to the Internet you are able to view pages on the web.

The Web is a means of transmitting data over the Internet where URL’s enable access to the location of documents. The documents written in html language enable links to other documents, graphics, video and audio files. Therefore the web is essentially an information management system that allows people to access information, files and media in all formats, hosted on servers around the globe, 24/7.  

Sir Tim Berners-Lee html coding language enabled developers to code and transmit information via the Internet, and publish on the web in a format accessible and readable to the average man in the street. 

The result is everyone has access to public domain material (free and copyright expired material) and copyright content, from the same entry point.

Google and other search engines index content to create short cuts to specific information and content, by search terms. Google began as a Stanford University research project, which became a company in late 1998 to commercialise its indexing of web page content. Its first patent was granted in 1999 based on a ‘Watermarking system and methodologies for digital media content’ for which it secured $25 million investment funding.

Had Google at that early stage, understood and respected the importance of indexing others copyright content and incorporated an identifier system, arguably copyright may have sailed into the digital age rather than have become disadvantaged.

Google hired its first CEO Eric Schmidt in 2001 and thus its commercialisation focus began its rapid journey towards its 2004 IPO.

And the rest, as they say, is history, alongside the utilisation of copyright content without any measures in place to credit ownership or communicate copyright terms of use.

New copyright models and revenues

Whilst Copyright law has evolved marginally and has not fundamentally changed, it has found itself at a disadvantage. Traditional copyright based business models are struggling to create new revenues or maintain existing revenues, including the music, film, publishing and image licensing businesses. 

New models and platforms launched in the millennium decade and beyond including Netflix, iTunes, Spotify and so forth, which to greater or lesser degree have created successful models, that were built on copyright rich content that consumers are willing to pay for. Transactions are low cost and copyright law, is taken care of by the organisations the consumers buy from. So consumers are not concerning themselves with copyright even though IP statements regards file sharing and copying are contained in the service agreements they accept without reading.

These business models appear to work well for consumers and for commercialisation of copyright content, - if you put aside the issues of illegal file sharing, pirating and private copying that continue to plague copyright owners and their intermediaries.

The common denominator in these models is, they are consumer transaction based. There is certainly room for improvement to resolve consumer copying and arguably to provide a more equitable distribution of revenues to Creators.

Visual imagery is a different ball game, including photography, illustration, 2D design and so forth. The image-licensing intermediaries have not innovated in the quite the same way as other creative industry sectors.  Instead they appear to be focused on investing in technologies that track & trap unauthorised use of images.  Illustration does not have the same established infrastructure as photography but is moving towards it. 2D design has no formal licensing based infrastructure in place.

Consumers and low-cost transactions are not currently the target market of image libraries, illustrators or graphic designers. Thus there is a lack of any consumer based benchmarks, resulting in the majority of Internet users perceiving that found images are free to access, free to view and free to download and use.

The professionally employed follow much the same pattern as a consumer when it comes to searching for visual imagery to support their everyday work including blogs, newsletters; public presentations; social media campaigns; web sites and other visual story-telling activities.

Some have a pang of conscience and under-take some due-diligence research to discover the image owner and usage terms. However, when that activity is difficult and time-consuming, many will resort to right click, copy and paste and keep their fingers crossed.

Image recognition technologies deployed by the larger Photo Libraries, act as a means to detect unauthorised use of images that are subject to a license and payment. Detection can result in individuals and companies receiving a legal letter and payment demand.

And in their millions Creators and businesses continue to place their content on the web devoid of any form of copyright identifier that enables web users to understand who the item belongs to and how to contact them

There are a myriad of ways a creator can take simple actions to identify their assets. The simplest, fastest and cheapest way is to insert their name and or URL into their visual item. Imagine if an artist had never signed a canvas. Or cars did not carry license plates.

Creators can also utilise digital copyright tags and insert into their asset, which give viewers direct access to the creator, their usage terms and the means to contact them rapidly.  Example http://c-b.me/3gw

Such services are available from several organisations such as Creative Barcode, Digimarc , Plus ID , Safe Creative and others. And new services are in development stages.  All are low cost and provide third party evidence. It is illegal to remove an identifier

But asset owners continue to ignore the good sense practice of identifying their work before releasing it without any form of copyright notice. If you were a Creator based in Uruguay or Paraguay doing that would have consigned your work to the public domain and pre 1989, likewise in the USA.

Many cite not having the time to even think about attributing their work and perceive it as a time-consuming task, when it is not. The process not forming part of a natural workflow, via a plug-in, integrated into commonly used software such as Photoshop, does not help matters. Many creative employees, undertaking the work, fear anything to do with copyright as they simply do not understand the law or terminology.

So the barrier to assisting the resolution of copyright issues in the digital age is not technology, the law, cost or even a lack of business models.  

The barrier is the requirement for behavioural change on a mass scale before new business models based on micro-payments for non-commercial or commercial use of visual imagery, under automated licenses, could even begin to make an impact.   


There are only three core ways to achieve mass behavioural change: the risk of death, legislation or monetary benefit


1. Risk of death

In terms of behavioural change the risk of death applies as much to the potential death of a business as it does to human life. Business owners often continue a course of action regardless of information presented on risk and how to minimise it, until the risk becomes a direct threat to the continuance of their business and threatens their livelihood.

Visual Creators’ income models predominantly fall into three categories

·      Creative Agencies and sub-contract freelancers, that are commissioned to produce creative solutions for brand owners, on a fee for services basis

·      Creators producing own work (e.g. photographers) who assign their assets to an intermediary for licensing, marketing and payment transaction from which they earn a royalty

·      Creators such as 3D designers, designer-makers, games developers, APP developers and so forth producing own work sold direct to consumers via own web sites or platforms such as Etsy, Amazon, Microsoft, Apple etc or direct under license to retailers and other businesses and their customers.

Virtually all of them fail to identify ownership of assets contained in imagery promoted across the web.

Group one don’t bother, as they are satisfied to be paid by a client and are then only interested in PR and marketing of the work.  Their clients do not have their own visual identification policies  (VIP) in place and therefore do not pass down any VIP policies to their agencies. The perception of time expended to attend to the task of adding a simple identifier to visual assets, is another common barrier.

Group two largely rely on Meta Data stored in an image and then divest responsibility to their intermediaries.  Some intermediaries insert their own watermark in images used for their own marketing purposes but remove them from the image files provided to a business publishing the image under a formal paid license. Nothing remains visually in the licensed image to communicate it is licensed, nor therefore deter others from naively or purposefully resorting to right click, copy and paste

Group three take some action such as 3D designers who might include a makers-marks on their products and where applicable, a registered design or patent number. But still do not apply their makers-marks or design rights tags to their product images. However, there are more designers operating under unregistered design rights than registered, who do not mark their products nor use identifiers of any type in the product images released on the web. Hence taking a double risk of the image being used disingenuously to drive people to web sites or used unauthorised to support blogs and so forth or indeed used to recreate the design itself. Unregistered (3D) design rights have a much shorter protection lifespan than 2D copyright works.

Games and App developers always include their authorship as its inherent in the production and packaging. Games might get illegally copied and shared with friends or even copied and illegally sold  - but the original creator or brand owner remains identifiable despite the illegal activity.  Apps rarely get copied. It’s generally pointless to do so as many are freely available and others involve only a micro-payment, so there is nothing much to be gained from illegal activity.

When top consumer brands and SME’s introduce Visual Imagery Identification policies and apply them rigorously, then design and creative agencies wishing to use the creative assets for promotional purposes will ensure the works are identified by whatever methods their clients dictate.

The same applies to all other visual asset producers and their intermediary licensing agents.

All three groups and brand owners in general also appear to overlook the benefit of an identifier, beyond its copyright purpose, and that is, it's a travelling advertisement for Creator and the brand. Unidentified work becomes anonymous once divorced from owners' web sites and social media platforms, swept up by search engines etc. Yet some of those same parties are happy to spend their own money on advertisements to generate traffic to their content.


Almost everyone appears to ignore or be unfazed by the upload policies of platforms such as Facebook, Instagram, Pinterest and so forth, which state in terms and conditions that the visual material and written content uploaded to their platform grants to them an irrevocable, worldwide license to use the content and assets in any way they wish, without remuneration or penalty.

So even those platforms' policies do not drive brand owners or Creators to ensure Visual Image Identifiers are at least contained within the assets. In law, which may or may not apply in this case, it is the last written document that reigns. Which in the instance of assets and content uploaded with an identifier or IP tag with usage terms contained (the function of a Creative Barcode IP Tag), that would be the last written document in play, and arguably over-ride the site terms and conditions. This might not be accurate, but it’s an interesting legal point to look into.  Clarification welcomed.


Why don’t Company CEO’s introduce Visual Imagery Identification policies?

I would suggest it is due to the existence of an entire disconnect between the company in-house legal and policy departments and its in-house design teams, advertising, marketing, social media and PR departments

So the issue is not even on the CEO’s mind, least of all on his desk.

In the USA pre-1989 the use of the ©Copyright [date] notice was mandatory, after 1989 it became optional. Therefore, even though it is still sensible to include a ©Copyright [date] in a visual asset to communicate its IP status, it is a practice that has significantly decreased. In the digital age, the practice should have significantly increased. Note the change from mandatory inclusion of a copyright notice to optional inclusion, pre-dates the public access to the www born in 1993.


Had they known then what they know now?………


2. Legislation

Legislation is law, which has been produced and implemented by a governing body in order to regulate, authorise sanction, grant, and declare or to restrict a course of action or behaviour.

Prior to 1989 Copyright law in the USA and other nations, dictated a mandatory requirement to include the ©Copyright and publication date notice, on a current copyright work, irrespective of it being formally registered or released as unregistered. Failure to do so could result in the work becoming considered as entered into the public domain

The reason it was mandatory pre 1989 was to simply communicate to others that the work remained within its term of copyright (between 50 and 100 years post the authors death, the length varies Country by country).

The reason the copyright notice changed from mandatory to optional in 1989 is due to the USA joining the Berne Convention. Under the Berne Convention copyright is automatically recognised without requiring any other form of assertion, such as a copyright notice




The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not "register" or "apply for" a copyright in countries adhering to the Berne Convention.[12]

As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires. The Berne Convention also resulted in foreign authors being treated equivalently to domestic authors, in any country signed onto the Convention. The UK signed the Berne Convention in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988. The United States did not sign the Berne Convention until 1989.[13]

It is interesting to note the date of the Berne convention Copyright, Designs and Patents Act of 1988 and the USA joining it in 1989 both pre-date the 1993 birth of the world wide web.

One can only speculate whether the Berne Convention might have been amended to declare ©Copyright [date] as a mandatory notice on all works that remain within copyright, had the www been born before the Copyright, Designs and Patents Act of 1988 and before the USA signed the Berne Convention.

Had it done so, Creators uploading work to the www would have at least included a copyright notice and Internet users would have better understood what was free to use and what required permission to use.

IMHO, to greatly assist Internet users, an amendment to the Berne Convention Copyright, Designs and Patents Act of 1988 that restores ©Copyright [date] as a mandatory requirement, would greatly assist in resolving the current copyright confusion for Internet users as well as act as the trigger that turns Creator and brand owner apathy into action

It would almost certainly hit the CEO’s desk and lead to a Visual Identification Policy and end disconnect between a company IP policy department and their marketing, PR, design, advertising and social media departments and external consultancies.

It might also force the Facebook style platform owners to amend their content upload policies


3. Monetary benefits

The final behavioural change trigger is monetary. Businesses will change behaviour when something either threatens to reduce or cease their income, greatly increase their costs or opens up opportunity to generate additional income, swiftly and easily.

A new business model for visual content industries

If a platform (with API and mobile App) were built for creative sectors operating in the visual industries that enabled them to quickly and easily earn micro-payments from assets they are currently giving away, then they might take action.


·      Any platform or App would need to be fast and easy to use.

·      Enable asset owners to use it at low cost without assigning any rights away to the intermediary.

·      Involve an automated process of purchase and release of an asset to a licensee.

·      And be focused on fast, easy and low cost (micro) transactions where copyright was inherent in the service and not a distraction.

·      And just like itunes began its life – set-up account, select track, accept license, buy-it, immediately download and play.


·      You want to use an image or other visual asset you have found (with its copyright IP tag displaying usage terms, price and payment button)

·      Set-up account, select image size and file format

·      Accept simple license terms

·      Pay and receive link to download and use immediately

·      The IP tag remains in the item as a condition of use under a micro-payment, and thus enables others to follow the same pay and use process.

·      The owner of the work is not required to be present nor administer payments or delivery; they just receive payments, less platform transaction fee direct to their account.


A new business model of that type could also work for:

·      Orphan Works

·      Museum and Library Archives

·      Portfolio Agents

·      And even for creatively talented individuals and art & design school students seeking to build their profiles, fan base and income


I would be very pleased to receive readers thoughts and feedback to this article m.j.horn@creativebarcode.com


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