Copyright Protection of Photographs Lucinda Jones WIPO-CAPS Workshop on Management of Intellectual Property for Photographers Beijing December 8-9, 2005

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

Copyright Law in China u Copyright Law of the Peoples Republic of China –effective, June 1, 1991 (grants copyright to photographs as artistic works) –amended October 27, 2001 (including distribution of photographs on the Internet) u Implementing Regulations –approved by State Council, May 24,1991/ September 15, 2002 u National Copyright Administration (Beijing)

Copyright for photographers uCopyright 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 protection uCopyright protects your original photos, not ideas uYour photograph must be original (not a question of quality) uRights: –economic (rights to control exploitation and be rewarded) Flast for 50 years (from publication or death of the photographer) –moral (integrity and attribution) - non-transferable Funlimited duration

How does copyright work? uCopyright exists the moment you take a photograph, whether on film or digitally captured images uProtects the person who took the photograph, not who had the idea uCopyright is free and automatic - no registration or formalities –since 1994, you can voluntarily register your copyright at the local copyright administration –issue certificate of copyright –useful to prove your ownership in case of dispute

What rights does copyright give you? Economic rights uThe right to decide whether to make the work available to the public for the first time –supplying copies of photos to the public –publicly exhibiting the photo, including on the Internet uThe right to exploit your work, and be paid for uses –to make prints or copies –scanning or photocopying –copying digital files –exhibiting your photos in a gallery or online –using the image in a TV broadcast –to adapt your work, by colouring, cropping, making collages

What rights ?... Moral rights uThe right of authorship –to be clearly accredited as the photographer of the work whenever it is reproduced (including on the Internet) –to prevent someone else using their name on your photo uThe right of integrity –to protect your work from being used in a way that damages your honour or reputation –to stop your photograph from being distorted or mutilated

Exceptions & limitations to copyright uExceptions and limitations applied to photographs? uAllow use without permission from copyright owner, including –Users private study, research, or personal entertainment –Quotation for commentary –For use in reporting of current events (re-printing and re- broadcasting) –Copying for use for teaching or scientific research –Government use for official purposes, including textbooks –Copying by a museum, library or gallery for display or preservation –Copying or photographing an artistic work in an outdoor public place

How do you benefit from copyright? uAllows you to control how your photos are used, including negotiating terms and conditions for licensing uEntitles you to payment for use of your photos, set up a business based on your copyright works, and earn a living as an artist uEnables you to take action against someone if they dont get permission before copying or publishing or using your photos

Who is the author of a photograph? uGenerally the photographer author owns the copyrightExcept: uJoint works –jointly owned by the co-authors uCommissioned works –ownership of copyright agreed by contract between the photographer and the person commissioning the photograph –if no contract agreement, then copyright belongs to the photographer (the commissioned party) uPhotos taken by employees –copyright belongs to the photographer, but the employer has the priority right to exploit the images in the course of its business

Who owns the copyright, prints, and negatives? uOwning 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 dont have the right to make further copies (they own the print, but not the copyright) –the copyright owner has the exclusive right to make and sell copies of the photo (regardless who owns the negatives) –the person who buys the film, usually owns the negatives

Who owns the copyright?... uPoints to note Ô when you are commissioned to take photographs, decide who should own the copyright and the negatives, and agree in the contract Ô 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 purposes (e.g., use on TV) Ô if you take photos for clients, you may need permission to include those photos in your portfolio or online (it depends who owns the copyright) -include a clause in your contract to enable you to use photos in your portfolio or for your self-promotion

Agreements about copyright uHow is copyright transferred? uAssignment –sale or transfer of all (or part) of your copyright –the person or company becomes new copyright owner –you can assign an existing or future photo uLicenses –agreement giving permission to use the copyright photo –exclusive license (no-one except the licensee can use the photo in the ways described in the license, including you) –non-exclusive license –implied licenses (from your conduct)

Copying photos uWhat is copying?...to paint without taking the Sung and Yuan masters as ones basis is like playing chess on an empty chessboard, without pieces. Wu Li, 17th Century Chinese Artist

Infringement of copyright uIf you own copyright, people will need your permission to: –copy your photo, or even a small part of it –make it public for the first time –send your photo in an or fax –include your photo in a film or TV show –use your photo on a website –import copies of one of your photos from overseas for commercial distribution –digitally alter one of your photo images –making a scultpure or painting or drawing from one of your photos

Infringement & enforcement of copyright uIf someone has used your photograph without permission (and not under an exception), it may be copyright infringement uIncludes infringement of copyright on the Internet uIncludes deliberate circumvention of technological protection measures or removal of the rights management information contained in your photo to protect your photographs online uYou 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 infringed? uIs someone using your photo without permission? uMany infringements occur because people dont understand copyright, or know that your permission is needed uGet professional advice uDisputes can be resolved by: –friendly consultation (write a letter) –legal intervention (letter of demand, mediation or arbitration) –administrative proceeding –civil litigation or criminal prosecution (courts)

Copyright advice uAttorneys u China Intellectual Property Society –may be able to recommend copyright attorneys u Beijing Association for Copyright Protection –represents copyright owners, investigates infringements and mediates disputes u China Copyright Protection Center –government agency, facilitates Chinese and foreign copyright transactions, provides consultation, mediation of disputes and representation in copyright litigation

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