Copyright Protection of Copyright Protection of PhotographsPhotographs

Lucinda Jones

WIPO-CAPS

Workshop on Management of

Intellectual Property for Photographers

Beijing

December 8-9, 2005

OverviewOverview

• Copyright Law in China• How does copyright work in photographs?• Rights & exceptions• Agreements about copyright• Infringement & enforcement• Advice

Copyright Law in ChinaCopyright Law in China Copyright Law of the People’s Republic of China

– effective, June 1, 1991 (grants copyright to effective, June 1, 1991 (grants copyright to photographs as artistic works)photographs as artistic works)

– amended October 27, 2001 (including distribution amended October 27, 2001 (including distribution of photographs on the Internet)of photographs on the Internet)

Implementing Regulations

– approved by State Council, May 24,1991/ approved by State Council, May 24,1991/ September 15, 2002September 15, 2002

National Copyright Administration (Beijing)

Copyright for photographersCopyright for photographers

Copyright gives you, as a photographer, the legal right to control the copying, reproduction, distribution, adaptation and public display of your photographs, and to bring legal action if you discover unauthorized use (infringement) of your work, and stop that infringing use or gain compensation

Copyright protectionCopyright protection

Copyright protects your original photos, not ideas Your photograph must be original (not a question of

quality) Rights:

– economic (rights to control exploitation and be economic (rights to control exploitation and be rewarded)rewarded) last for 50 years (from publication or death of the last for 50 years (from publication or death of the

photographer)photographer)

– moral (integrity and attribution) - non-transferablemoral (integrity and attribution) - non-transferable unlimited durationunlimited duration

How does copyright work?How does copyright work?

Copyright exists the moment you take a photograph, whether on film or digitally captured images

Protects the person who took the photograph, not who had the idea

Copyright is free and automatic - no registration or formalities

– since 1994, you can voluntarily register your copyright since 1994, you can voluntarily register your copyright at the local copyright administrationat the local copyright administration

– issue certificate of copyrightissue certificate of copyright

– useful to prove your ownership in case of disputeuseful to prove your ownership in case of dispute

What rights does copyright What rights does copyright give you?give you?

Economic rights The right to decide whether to make the work available to the public

for the first time – supplying copies of photos to the publicsupplying copies of photos to the public– publicly exhibiting the photo, including on the Internetpublicly exhibiting the photo, including on the Internet

The right to exploit your work, and be paid for uses – to make prints or copiesto make prints or copies– scanning or photocopyingscanning or photocopying– copying digital filescopying digital files– exhibiting your photos in a gallery or onlineexhibiting your photos in a gallery or online– using the image in a TV broadcastusing the image in a TV broadcast– to adapt your work, by colouring, cropping, making collagesto adapt your work, by colouring, cropping, making collages

What rights ?...What rights ?...

Moral rights The right of authorship

– to be clearly accredited as the photographer of the work to be clearly accredited as the photographer of the work whenever it is reproduced (including on the Internet)whenever it is reproduced (including on the Internet)

– to prevent someone else using their name on your phototo prevent someone else using their name on your photo

The right of integrity

– to protect your work from being used in a way that to protect your work from being used in a way that damages your honour or reputationdamages your honour or reputation

– to stop your photograph from being distorted or mutilatedto stop your photograph from being distorted or mutilated

Exceptions & limitations to copyrightExceptions & limitations to copyright

Exceptions and limitations applied to photographs? Allow use without permission from copyright owner, including

– User’s private study, research, or personal entertainmentUser’s private study, research, or personal entertainment

– Quotation for commentaryQuotation for commentary

– For use in reporting of current events (re-printing and re-For use in reporting of current events (re-printing and re-broadcasting)broadcasting)

– Copying for use for teaching or scientific researchCopying for use for teaching or scientific research

– Government use for official purposes, including textbooksGovernment use for official purposes, including textbooks

– Copying by a museum, library or gallery for display or preservationCopying by a museum, library or gallery for display or preservation

– Copying or photographing an artistic work in an outdoor public Copying or photographing an artistic work in an outdoor public placeplace

How do you benefit from copyright?How do you benefit from copyright?

Allows you to control how your photos are used, including negotiating terms and conditions for licensing

Entitles you to payment for use of your photos, set up a business based on your copyright works, and earn a living as an artist

Enables you to take action against someone if they don’t get permission before copying or publishing or using your photos

Who is the author of a photograph?Who is the author of a photograph? Generally the photographer “author” owns the copyright

Except:Except: Joint works

– jointly owned by the co-authorsjointly owned by the co-authors Commissioned works

– ownership of copyright agreed by contract between the photographer ownership of copyright agreed by contract between the photographer and the person commissioning the photographand the person commissioning the photograph

– if no contract agreement, then copyright belongs to the photographer if no contract agreement, then copyright belongs to the photographer (the commissioned party)(the commissioned party)

Photos taken by employees

– copyright belongs to the photographer, but the employer has the priority copyright belongs to the photographer, but the employer has the priority right to exploit the images in the course of its businessright to exploit the images in the course of its business

Who owns the copyright, prints, and Who owns the copyright, prints, and negatives?negatives?

Owning copyright in a photograph is different from owning the actual print, or the film and negatives

– if someone buys a print from you, they generally don’t if someone buys a print from you, they generally don’t have the right to make further copies (they own the have the right to make further copies (they own the print, but not the copyright)print, but not the copyright)

– the copyright owner has the exclusive right to make and the copyright owner has the exclusive right to make and sell copies of the photo (regardless who owns the sell copies of the photo (regardless who owns the negatives)negatives)

– the person who buys the film, usually owns the the person who buys the film, usually owns the negativesnegatives

Who owns the copyright? ...Who owns the copyright? ... Points to note

when you are commissioned to take photographs, decide who should when you are commissioned to take photographs, decide who should own the copyright and the negatives, and agree in the contractown the copyright and the negatives, and agree in the contract

if you are commissioned to take a photo for one purpose (e.g., an ad if you are commissioned to take a photo for one purpose (e.g., an ad in a magazine), you can stop your photo being used for other in a magazine), you can stop your photo being used for other purposes (e.g., use on TV)purposes (e.g., use on TV)

if you take photos for clients, you may need permission to include if you take photos for clients, you may need permission to include those photos in your portfolio or online (it depends who owns the those photos in your portfolio or online (it depends who owns the copyright)copyright)

- include a clause in your contract to enable you to use photos in your include a clause in your contract to enable you to use photos in your portfolio or for your self-promotionportfolio or for your self-promotion

Agreements about copyrightAgreements about copyright How is copyright transferred? Assignment

– sale or transfer of all (or part) of your copyrightsale or transfer of all (or part) of your copyright

– the person or company becomes new copyright owner the person or company becomes new copyright owner

– you can assign an existing or future photoyou can assign an existing or future photo Licenses

– agreement giving permission to use the copyright photoagreement giving permission to use the copyright photo

– exclusive license (no-one except the licensee can use the photo in exclusive license (no-one except the licensee can use the photo in the ways described in the license, including you)the ways described in the license, including you)

– non-exclusive licensenon-exclusive license

– implied licenses (from your conduct)implied licenses (from your conduct)

Copying photosCopying photos What is copying?

“...to paint without takingthe Sung and Yuan masters as one’s basis

is like playing chesson an empty chessboard, without pieces.”

— Wu Li, 17th Century Chinese Artist

InfringementInfringement of copyright of copyright If you own copyright, people will need your permission to:

– copy your photo, or even a small part of itcopy your photo, or even a small part of it

– make it public for the first timemake it public for the first time

– send your photo in an email or faxsend your photo in an email or fax

– include your photo in a film or TV show include your photo in a film or TV show

– use your photo on a websiteuse your photo on a website

– import copies of one of your photos from overseas for import copies of one of your photos from overseas for commercial distributioncommercial distribution

– digitally alter one of your photo imagesdigitally alter one of your photo images

– making a scultpure or painting or drawing from one of your making a scultpure or painting or drawing from one of your photosphotos

Infringement & enforcement of Infringement & enforcement of copyrightcopyright

If someone has used your photograph without permission (and not under an exception), it may be copyright infringement

Includes infringement of copyright on the Internet Includes deliberate circumvention of technological

protection measures or removal of the rights management information contained in your photo to protect your photographs online

You are entitled to take legal action, ask for financial compensation, or ask for the copies to be given to you

What to do if your copyright is What to do if your copyright is infringed?infringed?

Is someone using your photo without permission? Many infringements occur because people don’t understand

copyright, or know that your permission is needed Get professional advice Disputes can be resolved by:

– friendly consultation (write a letter)friendly consultation (write a letter)

– legal intervention (letter of demand, mediation or legal intervention (letter of demand, mediation or arbitration)arbitration)

– administrative proceedingadministrative proceeding

– civil litigation or criminal prosecution (courts)civil litigation or criminal prosecution (courts)

Copyright adviceCopyright advice

Attorneys China Intellectual Property Society

– may be able to recommend copyright attorneysmay be able to recommend copyright attorneys Beijing Association for Copyright Protection

– represents copyright owners, investigates infringements represents copyright owners, investigates infringements and mediates disputesand mediates disputes

China Copyright Protection Center– government agency, facilitates Chinese and foreign government agency, facilitates Chinese and foreign

copyright transactions, provides consultation, mediation copyright transactions, provides consultation, mediation of disputes and representation in copyright litigationof disputes and representation in copyright litigation

http://www.ccopyright.com.cn/

Thank youThank youwww.wipo.int

lucinda.jones@wipo.int