Image use - my viewpoint

Forum administrator note: for those who read the first paragraph of a thread and then move on to the next, I want to reaffirm that the initial post is mr. shep's viewpoint (as he states above). Ongoing discussion about image use policy and property will be contained in this thread, so read on! -- Daniel

When we upload images onto the UBC server to
show others our plants or photos of others plants
those images become the property of the UBC.
None of the photo images are to be used for any
commercial purpose without written consent from
the UBC granting approval for those photos to be
used.

We can save images from the UBC web site for our
own personal use. I have done it many times as I
have every photo of a Magnolia that the UBC has
posted from their gardens. Those photos that I have
are for my eyes only. I do not send them along as
attachments to friends of mine in E-Mails as those
photos, even though they may reside on my hard
drive, are still the property of the UBC.

If I was a nurseryman and had a online web site that has
plants for sale being 5 gallon size or less I might want to
show a photo of a 15-20 year old plant in all its grandeur
as a selling point to aid in my sales of my much younger
plants that are currently available.

Photos of ours that we have posted onto the UBC server
in the Maple Photo Gallery have been stolen and used by
unregistered members of the UBC and have been posted
on others web sites for commercial online purposes. We
were not asked if we could send those nurseries a copy of
the photo or photos we posted onto the UBC server. I felt
at the time and still do feel that the UBC, whom now owns
exclusive rights to those same photos, had not been asked
for permission for them to be used for online and offline
commercial purposes either.

I have copies of complete web sites in which I've used an
html editor and changed the coding so that I can view the
web site, as is, without ever being online. All I have to do
is click an .htm file on my hard drive and the page I want
to look at will open up for me. This is not thievery, it is
instead applying what I know about writing html code to
work for me so that I can see these pages strictly for my
own purposes and that no one else gets to see them. I
can do that without fear of any repercussions but as soon
as I send others photos or images from that web site then
I am may be guilty of online trafficking, depending on
what the people do with those images once they get them
from me. If I took some of those images from that web
site and used any of them for commercial purposes then
I am guilty of online theft and any possible copyright
infringement should the photos or the digital images
themselves be copyrighted.

I remember the day when an image from an online web
site had been used in a Maple forum thread with no
explanation given of the photo other than it was borrowed
from a web site. To my delight the photo was taken down
real quick with a question in effect asked by the forum
moderator, what do you mean borrowed? The photo
was taken off the server, tracked down as to its origin and a
link to the photo was written into the coding rather fast.
On my end I was gleefully applauding the moderators
with a thumbs up for their very quick and accurate work.
The photo was the not the thread starter's to begin with,
nor was the photo the UBC's to use or to possess in that
manner. Should we use anyone else’s digital photo or
image in the forums we should be and are duly bound,
in my mind, to cite where the photo came from if we
have permission to use that photo online. Without
expressed permission in writing granting us the right to
use those said images, we therefore must link to the photo
from where it originates instead.

A side note:

I like the reasoning that the UBC does consider themselves
a publishing entity online as that is exactly what they are.
Information provided by us as members and through the
UBC's own research staff have been seen by many others
online, most of them non-members of the UBC. We have
to be mindful of ownership of the content at all times. We
do not fully realize how far the UBC Botanical Garden
sticks their neck out to provide us a means for us to share
some of our expertise and knowledge in plants or engage
with others our experiences with plants along with our
willingness to help others in a worldwide online format.
Most recognized Universities have shown they really do
not want to participate in online activities to allow people
not well known to them participate in open discussions
involving plants at the possible risk or perceived expense
of the integrity of the University itself.

Jim

 

However, I do not consider images uploaded to the UBC server as property of UBC. I consider it a single and restricted use license granted to UBC by the uploader of the photograph for the purposes of education and understanding, expressly and only to be used on the discussion forums.

I also consider written content the same way - whatever people add to their forum is their own property.

(Copyright is of course retained by UBC for the photographs and written material generated by UBC staff and researchers).

More on this later, but that's the base I start from.

 

There has been a recent scenario on another forum I frequent where the admin provided material submitted by users without expressed consent of the user other than the license granted in the user agreement. Some members had their posts used verbatim and footnoted with a geographic area as to the providing user info. This information was used in a first issue trade magazine and there was an uproar with somem members about their posts being used. This forum has recovered after lengthy debate on the methods and ownership of posts with many users adding a copyright statement of sorts to their signatures.

 

Ok, to expand on what I replied above.

To begin with, a couple definitions: rights or copyrights - this is a legally defined assertion of ownership of a particular work (be it written or visual). I'm not a lawyer, but I do know that copyright of a work is not transferred lightly.

License or permission to use - this is a statement by the owner of a work granting a use of a copywritten work, subject to rules and conditions. Copyright is retained by the owner.

Bearing those in mind, I don't think these forums would be anywhere near as rich if UBC attempted to assert rights over another's work - would David Bookbinder have experimented and shared his flower mandalas if he were giving up ownership? I don't think so. If UBC were planning a book that used the answers of jimmyq without first asking or giving credit or signing an agreement to use (none of which would be necessary if UBC had rights), would jimmyq continue to contribute? Likely not.

UBC does assert rights over its own body of work - the images and written accounts by UBC researchers, staff members and volunteers.

To the issue of the theft of your photos. Using my statements above, you might conclude that I'm saying it's your problem to deal with - your photos hence your obligation to asset your rights. That probably doesn't sit right with you, and it doesn't sit right with me either.

I think what I'm about to write is where the language we use to define property has not caught up with two realities: 1) that a work can be duplicated, stripped of its context and attribution and redistributed with the click of a few buttons. 2) that a virtual community has an interest in supporting the contributions of its virtual citizens.

For the latter specifically, I'm quite happy to step in and tell those sites that their theft of images is not kosher, even though I or UBC don't have rights to the work. It's because the images were shared as part of this community. If the end result of people sharing in this community is abused or disrespected by UBC, other members of the community or others elsewhere, the community and all potential members of the community lose. The community must somehow step in to advocate on behalf of its contributors.

That's not an easy concept to wrangle into a policy, I suppose.

The issue of saving images / web sites to your hard drive for personal use is a moot one, as far as I'm concerned - the technology behind web browsers almost always uses a cache on the hard drive to store commonly visited pages and images, which is essentially the same thing, just unintentional.

 

I'd written my response above on the bus ride in this AM, without having read jimmyq's reply above, so it's merely a coincidence that I made an example of this particular issue.

 

I'm not a lawyer either but I have had to study and deal with copyrights (patents, trademarks...). Generally the owner of a copyright has the exclusive rights to use, COPY, display perform etc his material -- basicly the owner (in this case of pictures and writing) holds the copyright to the original work. They say how their work is to be used. If they release it to the public (or time expires) then they in effect release their rights. However, the real question to be answered is once they post a "copy" of their work here, what rights are they giving up to that copy? [Note they always retain rights to the original work]. Well, unless they have a disclaimer (copyright notice) attached, they are giving up all rights to that copy really -- they are giving it to UBC without restriction -- the copy is UBC property, and as such, would then fall under the UBC copyright disclaimer or as UBC saw fit to do with the copy. So what Mr Shep says is right, what we post here it is given freely with out restriction to UBC at this point.

So is the current UBC copyright notice sufficient?

If the Forum disclaimer says that the original owner retains rights to the copy posted etc. etc. as Daniel Mosquin is proposing, then they retain their rights -- that is the copyright agreement to which one agrees to post here. Having a copyright notice on the forums protects members of the forum as it is also international law recognised by most countries (but not all). I could say more, but UBC has a legal department so the all this should be brought to their attention -- I think they going to go through the roof if Daniel doesn't! Umm wait, let me take that back, they, will go through the roof! OK enought said.

 

Not to be flip, but there is no budget to talk to a lawyer, even one retained institutionally. So that's not an option.

Regarding copyright, a copyright symbol is not required on the work in either the United States or Canada (and indeed most countries which are signatories of the Berne Convention) for the owner of the work to retain copyright. It helps to communicate that a work is copyrighted, but by its absence does not mean that copyright is surrendered.

For Canadian copyright, see: http://www.accesscopyright.ca/resources.asp?a=35

 

The problem with snipits is they can cut key facts. For example, I stated "the owner (in this case of pictures and writing) holds the copyright to the original work." And yes automatically as you state. No issues there! My point is what "rights" the owner/copyright holder is granting to "the copy" that is provided to UBC (UBC now owns by possession) when it is posted here. The terms and conditions of that copy. That is what copyrights are, "rights" given to "the copy". And when one post here they are automaticall granting UBC, "rights" to "the copy" posted and UBC, the copy UBC now owns, by possesion, subject to thoes rights.

Its like buying a book, you own the book, are granted certain "rights" to "the copy" of book, but are not the copyright holder. You can give that book to others, you can sell the book to others (but may not make copies to sell) et.al. That same principal applies to works posted here unless explicit rights are attached, by the copyright holder, terms and conditions (which now exist), UBC copyright terms (which exists), or any other liciense or terms and conditions that may be applied.

As for the institution laywer, give him a call, tell him what you are doing/did and ask if he has any concerns -- doesn't cost but the quarter. I contend it is he that wants to seek you vice you seeking his service/representation. In worst case, he says he (UBC as that is who is represents) is disinterested -- case closed and it can't come back on you later because you asked. In the USA this is a common practice refered as to CYA.

BTW there are interesting differences between US and CA copyright law -- education instutions can copy freely in the USA for education purposes. It governed under title 17, USC, ch 117 "Fair Use". http://www4.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17.html

 

There was no intent on my part to misquote or disinform via the snippet, it was merely a convention I used to address what I thought were the salient parts as a ease of use for the end user. Point taken, though.

I appreciate your concern re: CYA, but I'm not worried. Yes, I can imagine a scenario where I get into some sort of trouble, but my common sense tells me that the risks are low, especially if everyone is treated with dignity and respect.

I also understand what you are trying to get across with your analogy. Also, I think we've touched on some differences re: Canada and US copyright laws (another example is that the owner of a work always has a European-style Moral Rights to a work, but the equivalent wording does not exist in the US), and we haven't even touched the copyright laws of the 50 or so other countries we have had contributions from.

I think it harkens back to what I said in an older post. We're trying to map concepts that applied to a nascent Internet world (the most recent international copyright conventions predate the web) to one where the issues and ramifications are still being explored. I think it's important to have an awareness of the issue, but I think trying to find clarity from a set of written rules (or trying to craft a set of written rules) is nigh impossible when the legal framework does not exist.

I prefer to trust my fellow humans that if a problem emerges, we can solve it as people who can reason, remember, imagine, and intuit, apply common sense and creativity and act ethically (yes, I read John Ralston Saul).

It comes down to this:

UBC is granted a single and restricted use license by the uploader of the photograph for the purposes of education and understanding, expressly and only to be used on the discussion forums.

There are permutations on that, but if an issue comes up, we'll resolve it.