Hey dude, that's my photo! Social media, copyright and 'public interest'(?)

This Kat has always marvelled at the ability of social media such as Twitter and FaceBook to provide an almost simaltaneous eye-witness version of newsworthy events. For instance, individuals present at the tragic events in Norway or the riots in England earlier this month could have taken photographs or footage on their mobile phone and uploaded it to their social networking account, where many others could have viewed it. So what happens when media outlets which were not present at these events want to use the photographs or footage? Do normal copyright considerations apply?

The issue has become topical recently owing to an official complaint made by Mr Andy Mabbett to the BBC, claiming that in its coverage of rioting in Tottenham on 6 August 2011 the BBC may have infringed copyright by using photographs from Twitter without permission of the authors and without properly attributing them. The first response by the BBC was a rather surprising statement that:
'Twitter is a social network platform which is available to most people who have a computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain. The BBC is aware of copyright issues and is careful to abide by these laws'.
A 'speechless' Mr Mabbett drew attention to the issue and the BBC's response on his personal blog 'Pigsonthewing'. Shortly afterwards, the BBC did an about-face and released a statement in which it admitted that its conclusion above was 'wrong' and '[did] not represent BBC policy'.

In this release, the BBC then proceeded to outline its policy:
'In terms of permission and attribution, we make every effort to contact people who've taken photos we want to use in our coverage and ask for their permission before doing so.

However, in exceptional situations, where there is a strong public interest and often time constraints, such as a major news story like the recent Norway attacks or rioting in England, we may use a photo before we've cleared it.

We don't make this decision lightly - a senior editor has to judge that there is indeed a strong public interest in making a photo available to a wide audience.

In terms of attribution, ie giving a credit to the copyright holder, it's something we should always try and do when we use such photos in BBC News output.

But sometimes, in the exceptional circumstances just outlined, it's just not possible to make contact with the person who took the picture, or they don't want to be contacted, or we might consider it too dangerous to try and make contact - a significant issue in our coverage of the recent Arab uprisings.

Even when we do make contact, the copyright holder might give us permission, but ask not to be credited because it puts them in danger or they believe it will be used against them in some way.

So, when we can't credit the copyright holder, our practice has been to label the photo to indicate where it was obtained, such as "From Twitter", as part of our normal procedure for sourcing content used in our output.

We do want to acknowledge the value our audience adds to our output, and hope this sheds light on our editorial decision process made during exceptional circumstances'.
This Kat wonders whether the BBC is setting a bad example to other web users and media outlets by admitting that in certain circumstances it will use a photograph from the internet before it has been properly cleared with the copyright owner. She always thought that there was no public interest defence to copyright infringement and that it was not justifiable to use a copyright work merely because one could not contact the copyright owner ...

Merpel wonders if it is too late to apply the BBC's logic to content on TV and iPlayer. After all, she thinks, television and the internet are platforms available to most people who have a TV set or computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain. If so, she would not mind recording or downloading all of the BBC's 'Spooks'. Merpel is aware of copyright issues and is careful to abide by these laws.
Hey dude, that's my photo! Social media, copyright and 'public interest'(?) Hey dude, that's my photo! Social media, copyright and 'public interest'(?) Reviewed by Catherine Lee on Thursday, August 25, 2011 Rating: 5


  1. Although there is some debate as to the scope of the public interest defence in the UK, it was specifically preserved by CDPA, s, 171(3). It is also applied or considered in at least the following cases: see Lion Labs v Evans, AG v Guardian (No.2), AG v Blake, Hyde Park v Yellard and Ashdown v Telegraph (as well as some older ones - indeed one of the other Kats wrote an excellent article on the old cases on the PII defence in the Anglo-American LR when his fur was still shiney).

    In respect of Australia, however, its existence is debatable and it has been said to be part of the unclean hands doctrine.

  2. We know the BBC is a big place with several right hands not knowing what all the left hands are doing, however, one assumes that is why they have a stratum of highly paid managers doing things such as, er, governance.

    Your take on this story rips scar tissue off the treatment of those that argued for a technology neutral iPlayer (Canvas, YouView, you name it) so enabling those that prefer to use something other than Microsoft technology.

    The core argument centred on the "requirement" to use DRM (c.f James Boyle, The Public Domain). This was only true if one decided to widen accessibility to those that did not require a TV licence or the reassuringly expensive Apple as this technology does not support the DRM used and has always had access to DRM free stream.

    Various ad hominem arguments were deployed, the best were not those by Ashley Highfield (that were just ludicrous) but rather by Erik Huggers while receiving an award at the IET (an engineering institution) who appeared to be suggesting that the only uses for Linux were to steal content.

    This is particularly ironic as the BBC webpage demonstrating how one might steal content using a variety of technologies is still there to be seen


  3. David Cullen (William Fry, Ireland)Thursday 25 August 2011 at 15:38:00 GMT+1

    @DavidCullenTech says - BBC's policy is about survival really, isn't it? Damned if you do, damned if you don't. Breaking news goes worldwide on various media before even the Kat could scoff a kipper. The Beeb might as well shut up shop now if it had to clear every single use before meeting the demands that go with competing in that market. Arguably, there is an implied licence for a lot of internet postings; the whole point is often to share.
    By the way, if you're planning on playing fast and lose with copyright, BBC's The Killing would be better to watch in your cell/(cathouse?) than Spooks.

  4. What about the effect of s171 CDPA 1988? I suspect that this doesn't help the BBC in these circumstances but there are circumstances in which copyright protection is denied in the public interest.

  5. Let's clarify the effect of CDPA s.171(3): "(3) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise". Its effect is not to render an otherwise infringing act as a non-infringing one, but rather to prevent or restrict a copyright owner from seeking a specific form of relief: thus it enables a court, on public interest grounds, to deny interim injunctive relief even where commercial damage may be done by the defendant, in that there is an overriding public interest in the dissemination of a work for the purpose of debate on a burning issue, but it won't interfere with a subsequent claim for damages or an account of profits.

    I wouldn't call that a defence of public interest ...

  6. It's an interesting policy on photographs given the clear terms of section 30(2) of the Copyright Act, which the policy does not appear to reference.

  7. @Anonymous 4:24pm -- Mention of photographs, excluded by s.30(2) of the CDPA from "fair dealing for reporting current events, reminds me that the definitions of "film" and "photograph" in the Act are mutually exclusive, which leads one to conclude that a still from video footage, not being a "photograph", is not covered by s.30(2).

  8. I find it quite appalling that the BBC should take this line of use first, ask later. When coupled with similar practices by the Daily Mail picture desk (who once ascribed 'Copyright: Internet' to a picture they lifted) you can see why many photographers resist the introduction of orphan works licensing since digital photography is highly vulnerable to having all identification stripped off an image, thus making this kind of tactic very easy to use.
    I also note that the BBC's blurb is all about giving credit, but says nothing about renumeration for the photographer. I hope Andy Mabbett looks up the current rates on the the NUJ website and sends in his invoice.

  9. It occurs to me that if the DEA was fully in force, the BBC might well receive its first warning letter (from itself as is its ISP) as a result of this action. Since this appears to be editorial policy it is likely that the BBC would very quickly reach the point where 'further technical measures' would be invoked and the corporation would be disconnected from the internet. Oh the irony. It's rather a shame that Parliament never considered this set of circumstances when debating the DE Bill.

  10. Using others photos without permission will generally be infringement, no exception for news reporting in relation to photos. So BBC policy is a little misguided. If, however photos are being taken from facebook, for example, the facebook terms and conditions will apply. These currently state that if content is made available to everyone, there is a licence for anyone to use that content, even if not a registered facebook user. Therefore the BBC would be able to use such photos without obtaining additional specific consent. There are also specific terms in relation to this on twitter. Unfortunately BBC "policy" ignores this and suggests something which would normally constitute infringement. Surprised BBC lawyers have not picked up on this.

  11. @anonymous 7:27.
    What Facebook's terms say is:
    "you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it." (my emphasis added)
    In other words the licence is granted to Facebook, and not any third parties. So the BBC's use remains infringement in the case of still photographs, and I would suggest notwithstanding Jeremy's earlier point about, stills taken from a 'film' (or video) being different to photographs, there is an arguable case that film stills should also be subject to the same s30(2) exception. It seems to me that the reason photographs were excluded from s30(2) fairdealing is that to use them you use the whole of the copyright work and this clearly meets the substantial criterion. This is quite different to quoting a sentence from another newspaper's report, and in light of the Meltwater decision, even quoting text is not carte blanche to lift any amount from anywhere, solely under the s30 fairdealing defence. If a photograph could be used ander the fair dealing (or public interest defence IMHO) then freelance photojournalists and picture agencies would soon be losing money on a colossal scale.

  12. Ahh, so the BBC finally realises that copyright laws are a complete pile of and need reform. People like Cory Doctorow, the EFF and others have been banging on that over zealous efforts to 'protect revenue' just shaft the whole industry. What matters is profit not revenue and copyright restrictions just increase everyone's costs. I guess they assumed that the big boys were exempt, because to be honest the normally are.

  13. If there was no public interest exemption for copyright, do you not think news organisations would get into a lot more trouble publishing leaked documents?

  14. At 7:27, anonymous talked of the Facebook licence applying to Facebook, not to others; but the Facebook T&C quoted seem to talk of a transferable licence - does this mean that the BBC could quite reasonably obtain such a licence in individual or bulk cases?

    I wonder if Twitter's T&Cs are similar?

  15. @Dave Donaghy: You're spot on:

    1.For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
    (Emphasis added)

    Facebook can - and I understand do - provide photographs to other organisations under this provision.

    If you intend to exploit the IP yourself, don't use Facebook to host.

    However, the BBC do not appear - and do not claim - to be doing anything so sophisticated. They're simply downloading photographs from Facebook, and presuming to use them.

    Personally, I prefer yFrog, whose terms say:

    ImageShack will not sell or distribute your content to third parties or affiliates without your permission. Third parties may exercise the following options regarding your content:

    •Third parties may hyperlink to the page that displays your content on the ImageShack Network without modification and with proper attribution to you.
    •Third parties may request permission to use your content by contacting you directly.
    All requests for permission regarding your content usage directed at ImageShack will be forwarded to you. All uploaded content is copyrighted to its respective owners. ImageShack directs full legal responsibility of said content to their respective owners. All content generated by ImageShack is copyrighted by ImageShack. ImageShack is not responsible for any uploaded content, nor is it in affiliation with any entities that may be represented in the uploaded content.

    Compare and contrast the TwitPic terms, which state:

    You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

    IMV, that allows them to provide images to the media, tagged as TwitPic, under the cover of promoting and/or redistributing the media.

    I would be interested to hear people's views on the moral rights issues. The BBC's conduct is especially egregious there - they deliberately misattribute the works to Facebook and others.


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