International legislation

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Copyright law

While copyright might seem like a well defined area of law where someone by creating something artistic, such as a painting or a photograph, or literary, such as a book or a po-em, holds protection for said work without having to take any action, there are many com-plex questions regarding copyright. One being who can hold copyright. There have been arguments regarding a situation where a monkey took a photo of itself using a photogra-pher’s camera, which later was uploaded to a website saying that the monkey owned the copyright.24 The US Copyright Office in a compendium explicitly stated that they cannot register copyright for “a photograph taken by a monkey” as it is not created by a human.25 However, as copyright belongs to the author of a work, it would depend on the definition of “author” who can be said to own copyright.

EU

While the nations of the EU have legislation that address copyright protection, the EU have implemented legislation that according to the principle of supremacy take precedence over national law.26 The EU law is a means to harmonise the legislation of the member states and results in the national laws of the member states of the EU being somewhat sim-ilar. This because legislation enacted within the EU states the rights that the member states’ national laws are obliged to give the residents of other nations within the EU.
There are a significant number of directives established within the EU concerning copy-right and its protection. However, the most relevant to copyright protection online is Di-rective 2001/29/EC.

Directive 2001/29/EC (InfoSoc Directive 2001)

The InfoSoc Directive was established as a response to developments that occurred within the technological area. At the time of its adoption, several member states had already im-plemented changes to their legislation on a national level to meet and solve the clashes that occurred with online copyright protection. In order to maintain the scope of the EU, har-monisation on an EU level was necessary, and thus this directive was implemented.27
The directive bestows certain rights upon the author for any type of work they produce, as well as giving performers, phonogram producers, film producers and broadcasting organi-sations some rights regarding reproduction of their work and making it available to the public. The right to reproduce a work rests with the author of said work, and member states are obliged to exclusively give the right to the author to authorise or prohibit any type of reproduction of their works.28 The same is true of the right to communicate the work to the public; whether it is making the work publicly available, by wire or wireless means, the right lies with the author.29 Also the right of distribution, both of the original work and of copies, is held by the author. The right of distribution that is given by this di-rective can be subject to exhaustion according to the principle of exhaustion. This means that a work that is lawfully obtained through sale or any other type of transfer of ownership that is made by the rightsholder, or with the rightsholder’s consent, can be distributed fur-ther.30 However, this is not to be applied to work that is lawfully copied by a user of an online service with consent of the rightsholder. In such a case, the right of distribution shall not be exhausted.31 It is also possible to transfer the rights granted by the Directive by li-cence.32
Article 5 of the directive states exceptions and limitations to the rights bestowed by the previous articles. While the article lists a number of exceptions, only the first paragraph of the article is binding for the member states. The remaining paragraphs of the article leave to the member states implementation of exceptions and limitations on a national level.33

Directive 2006/116/EC

As the Berne Convention lays down minimum requirements for terms of protection34, Di-rective 2006/116/EC was adopted as a step in making the terms of copyright protection in 27 Directive 2001/29/EC of the European Parliament and of the Council of 22 may 2001 on the harmonisation of certain aspects of copyright and related rights in the informaiotn society, OJ L 167,  member states of the EU increasingly unanimous. The directive provides that work such as photographs and videos, as defined in the Berne Convention, shall be subject to copyright for the author’s life and an additional 70 years from the day the author passes.35 This means that work within the EU holds copyright for a longer period of time than those only pro-tected under the Berne Convention. Regarding photographs, the work needs to be “the au-thor’s own intellectual creation” in order to be protected under the directive.36

US Copyright Act of 1976

In 1998, the 1976 Act37 was amended by enactment of the Digital Millennium Copyright Act (DMCA). This amendment was made in order to implement the WCT and the WIPO Performances and Phonograms Treaty (WPPT) into the 1976 Act.38 To make the 1976 Act compatible with the WCT, section 512 and 1201-1205 were created.
In US legislation, the general rule is that an original work that is of authorship and “fixed in any tangible medium of expression, now known or later developed” from which it can be communicated in any form is under the protection of copyright.39 From the definitions in §101 it is given that the term ‘fixed’ means that the work is stored in a way that enables it to be communicated for a longer period of time.40 However, it is only unpublished work that is protected regardless of the author’s nationality.41 If the work is published, the author ei-ther needs to hold residence or be a national in the US or a treaty party, meaning “a coun-try or intergovernmental organization other than the United States that is a party to an in-ternational agreement”.42, 43 The author will also enjoy copyright protection if their work is initially publicised in the US or other country, if it is a treaty party.44 The rights which fall upon the copyright owner are to solely be able to authorise reproduction by copy, prepara-tion of derivative works, commercial or non-commercial distribution of copies or other types of distribution and the public display of the work.45 Within the 1976 Act, authors also hold moral rights to their work. This right is fairly limited as it only applies to authors of “a work of visual art”46 which, according to §101, in terms of photographs, means “a still pho-tographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and con-secutively numbered by the author”. The right does not apply to motion pictures or any similar productions.47 For a work that holds protection according to the 1976 Act, the ini-tial copyright owner of the work is the author or the authors. The ownership can then be transferred by “any means of conveyance or by operation of law” either in its entirety or in part.48 Such transfer can be made in a few different ways, such as by licensing the rights with an exclusive or non-exclusive licence. An exclusive licence grants the licensee the cop-yright or part of the copyright to the work, while a non-exclusive licence gives the licensee the right to use the copyrighted work but does not grant ownership.49 It needs to be noted that “transfer of copyright ownership” by an exclusive licence needs to be provided by a written and signed instrument, as defined in §101, while a non-exclusive licence can be an oral agreement as it is explicitly excluded in the definition.50
As mentioned earlier, copyright arises automatically for the author of a work, without any need of formality. However, within US law, both the copyright notice applied to the work and registration of copyright may play a role in the case of a copyright infringement situa-tion. According to the 1976 Act, a lawfully made copyright notice may put the defendant in bad faith, where the case otherwise might have resulted in mitigation for actual or statutory damages.51 Registration of copyright may also prove important in a copyright infringement case. In order to actually make a copyright claim for a US work, the copyright owner needs to have the copyright registered.52 However, since the 1976 Act has been amended in order to comply with the Berne Convention, where registration is not requested53, any foreign work shall not be subject to this provision, although it might prove useful for authors or owners of foreign works that enjoy copyright in the US to register as it might prove benefi-cial in an infringement procedure.54, 55
The amendment to the 1976 Act brought a section that serves as protection for service providers online. Service providers such as social media sites fall under paragraph (c), as they are considered services for online storing and communication.56 The paragraph states that in cases where the service provider does not have the knowledge to determine that in-fringing activity is ongoing, is not aware of facts or the circumstances regarding infringing activity or, when receiving knowledge or awareness, urgently acts accordingly, the service provider cannot be hold liable.57 Further, the service provider will not hold liability despite the service provider having ability to control infringement, if it does not benefit from such activity in a financial fashion.58 Also, in cases where the service provider is notified about infringing activity acts accordingly, the service provider cannot be held liable for infringe-ment rising from user activity on the service provided.59 All service providers are however obligated to have a designated agent that deals with the notifications regarding infringe-ment claims. This agent, and its contact information, must be accessible for the public on the site.60 Also the form of the notifications is regulated by the section and need to live up to certain requirements in order to be acceptable as infringement claims. The necessary el-ements are an authorised signature, identification of the infringed work or works, identifi-cation of the claimed infringing material, information about the filer of the complaint ena-bling the service provider to contact him or her, a statement that the filer has a good faith belief that the use is not authorised, that the person complaining is able to act on behalf of the owner of the infringed right and that the information given is accurate.61
Even though copyright gives the author the sole right to his or her work, there are a num-ber of cases where this right is limited, giving others the right to use the copyrighted work. In the 1976 Act, section 107 lists uses that may not be considered copyright infringement if the criteria in the section are met. The four criteria consist of the purpose and character of the use, the nature of the work, how substantial the section used is in comparison with the copyrighted work in its entirety and the effect the use will have for the copyrighted work on its potential market.62 When trying to determine whether the use of copyrighted work is fair use or an infringement, courts will apply the four criteria to the situation before coming to a conclusion. This means that there is no pre-set situation that will always be considered fair use, it varies from case to case.63, 64
It has previously been established by the Supreme Court that the first factor, purpose and character of the use, weighs heavily in determining whether fair use is present. The court will try to establish if the use has been altered so that it can be seen as something distin-guished from the original work. Courts will be more likely to agree that fair use is at hand if the use in some way has added to the original work and can be considered to have a distin-guishable purpose.65 The second factor, nature of the work, concerns what type of work is being copied. The amount of creativity that can be considered to have gone into the work will affect how the court judges the use. Also, fair use is more likely to be at hand if the work copied is already published. This comes from the fact that authors have the right of distribution of their work. In regard to the third factor, the amount and substantiality, the court will evaluate if the portion copied is justifiable in comparison with the work in its whole. Moreover, although the portion might not be that large, if the portion is strongly connected to and of great importance to the work as a whole, the use will probably not be considered fair. The last factor, the effect of the use on a potential market, concerns whether the use will damage the copyright owner in any way in regard to income or ability to distribute the work.66, 67

1 Introduction
1.1 Background
1.2 Purpose and Delimitation
1.3 Method
1.4 Outline
2 Copyright law
2.1 EU
2.1.1 Directive 2001/29/EC (InfoSoc Directive 2001)
2.1.2 Directive 2006/116/EC
2.2 US Copyright Act of 1976
2.3 International legislation
2.3.1 Berne Convention
2.3.2 TRIPS agreement
2.3.3 WCT
2.4 Exceptions and limitations
2.5 Creative Commons
3 Terms of Use/Service
3.1 Instagram
3.2 DeviantArt
3.3 Flickr
4 Conditions for use of photo sharing sites: A comparative analysis
4.1 Copyright on the sites
4.2 Congruence with copyright law
4.2.1 Instagram
4.2.2 DeviantArt
4.2.3 Flickr
4.3 Governmental agencies and licences on the sites
5 Analysis
5.1 On general conditions for use of sites for photo sharing
5.2 On conditions for use of photos
5.3 On conditions for reuse and reproduction of photos
5.4 On conditions for termination of services
5.5 On conditions under different jurisdictions
6 Conclusions
List of references
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