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Why old Candelas are missing, and some have few pictures

Copyright laws

The following is not legal advice but a cautionary tale of much learning resulting from having recently received several copyright infringement notices for images which we had used in two past Candela magazine issues, images we found on the internet, while not knowing and understanding the full implications of making use of them. The infringement notices were a surprise and wakeup call. You may well be asking “isn’t it okay to use images easily available on the internet, especially if you don’t know who owns or made them, and especially if everyone seems to be doing the same thing?” Or asking if it wouldn’t seem a good idea to make a Powerpoint presentation more interesting, making it more colourful and entertaining by using that great image easy to find on the internet because the picture shows exactly what I mean? Or you may wish to spruce up your YouTube clips with images which seem to be freely accessible?

Well, actually, NO, it would not be good to grab any image. It would be good to be mindful of the following.

Just because something is easy to find and access and download from the internet doesn’t make it okay to use it or free to use without permission from its creator.

Copyright protects creations (i.e. their creators) of works of art, for example photos, literature, books, poems, newspaper articles, drama performances, music, etc, unless the artist has specifically issued the work with a Creative Commons type of free public use licence. Otherwise the work will be automatically covered by the copyright act as soon as they are created.

The way copyright law works is that the original creator of any piece of art legally owns all the copyrights to the art immediately without having to do a thing.

Under Australian law, a work can only be protected by copyright if a human author contributed their independent intellectual effort, and since Aritificial Intelligence tools are by a machine and lack the definition of being a human author, therefore AI art - as one of the newest mediums for expression - is forbidden from copyright protection because it fails the human authorship requirement under current law. Despite several challenges to this, the Copyright Office holds fast that AI art lacks humanity and therefore does not currently have the legal status to own copyright. But whenever a human author creates a new work, the artist does not have to ‘apply for anything to be protected by the copyright laws. It’s automatic, by default, and it therefore becomes immediately enforceable by law. This applies whether the work is digital or not. That is something we all should know.

So, it would be better that you don’t use that image off the internet, unless:

  • you are the original creator, or
  • have obtained permission from the owner-creator and - if needed - purchased a licence from them creator for its use (identify the owner, identify the rights needed, contact the owner and negotiate whether payment is required, get your permission agreement in writing), or
  • you come under the small number of “fair use” defences (see below), or
  • are getting an image which has a Create Commons licence issued by the creator to it,

If the above does not relate to you, then we suggest you start looking for - or creating - another image. Don’t wait for an infringement notice to let you know what you can’t use. Get informed (see useful links below).

Because rights are sometimes transferred, creators and owners might in that case not be the same. In the case where rights were transferred, this could occur in a person’s will, or earlier, e.g. using a “release form” (a waiver, which is a legal document that grants permission for a person or organization to use someone else’s image, likeness, or property in a specific context). Such a transfer is commonly used in photography, video production, and events). To obtain permission in that case, contact the new owner to which the rights were transferred.

By the way, while performers or creators do have copyright of their work of art, they do not own the copyright of any audio and visual recordings or photos taken by others of their performances. The photographer owns the rights to the photograph they took, while the artist owns copyright of the original work of art being photographed. That’s where it can get tricky. So if in doubt, consult the law and get legal advice. And the performers of a work of art (eg a dramatic play) have further rights apart from those of authors, composers etc. and consent must be obtained to record or broadcast a live performance. Unauthorised recording of a live performance can be pursued legally. The right to perform a work publicly is an exclusive right of the copyright owner, a public performance in a venue that does not have blanket licenses may require a license to be granted through the publisher of the work.

In short, the copyright laws exist because creative people are entitled to deriving an income from their work and to retain some control over it’s use.

I guess ingnorance and compacency have come from copyright not appearing to be actively enforced much, at least not until now, except for famous and high value items. But visibility of images works both ways, and also lets managers of rights see what you’ve done with creative work and to match it against what else is out there. The times of assuming you can be lazy, or to get away with it, or not be noticed to do it, etc, might all be changing. Companies like PicRights are cleverly finding, matching, checking and charging copyright users about their licences or lack of one, and pursuing infringers with appropriate fees. So beware. Even having done it in the past is no excuse to let it remain longer or to let the practice keep happening.

So you might ask, isn’t a creative work in the public domain once it’s on the internet? NO, “public domain” applies only to items which are no longer under copyright once it expires. Copyright (even for anonymous or pseudonymous works) comes into effect from the moment a new work is created and lasts for 70 years after the death of the author of that work, regardless of whether the work was made public or not. So don’t wait around for that.

If the book includes photographs, artworks, drawings, illustrations, diagrams and maps, each will be protected separately as an artistic work.

There are only a few specific defences against infringement. “Fair use” in Australia mainly only allows for people to be let off the hook if a creatively something is licensed to the user, or is used for free for study purposes, or for reviewing the work, or to criticise, satire or parody the work. Check with the Australian Copyright Council (link below) for more detail.

Our recent lessons is learning to:

  • Be careful (ignorance is no excuse, so when in doubt, don’t!)
  • Be wise (be informed, live by that info, be humble enough to address it if you get it wrong - apologise, make amends, take it down, replace it, do what is needed)
  • Be kind (to the original content owners and their lives, credit them, honour them with what is due, acknowledge your sources)
  • Be grateful (thanks to the companies and lawyers who help us check on our conscience and charitableness to others respecting their livelihood, rights and income).

Out of respect for the creators of the images we have enjoyed using in the past but without seeking their consent or licences, we have removed from the latest issue of Candela, which is why there are no images in it anymore (except for Ruth’s own photographs). And we have also removed all past Candela from the web and changed. For any related enquiries about Candela, etc, please contact the Swedenborg Centre.

Five ways to determine if a photo is copyrighted.

  • Look for a watermark. A watermark is a logo or signature that’s superimposed on an image to protect the work from illegal use or distribution.
  • Look for a photo credit in the caption.
  • Check the metadata.
  • Use Google’s reverse image search, i.e. go to Images.Google.com, click Search by image, click Upload a file, select an image, click Open or Choose.

Each country has its own unique copyright laws that govern intellectual property (such as copyright) in that country. Yet, while those laws only apply to works created and used in that country, if the country in which the work was created as well as the country in which the work is used are both signatories to the Berne Convention for the Protection of Literary and Artistic Works (an international agreement governing copyright, signed by 176 countries), signing that treaty require any member countries to give ’national treatment’ to works created in any other treaty country. This means that Australian copyright law applies to foreign copyright material from treaty countries when the material is used in Australia. For more on the Berne Convention, see this Wikipedia article

Useful reference links:

www.copyright.org.au - the Australian Copyright Council (ACC) have plenty of resources and info on their website to answer questions about copyright laws in Australia.

picrights.com - PicRights (and simlarly, Copyright Agent) are not law firms. They are third parties acting on behalf of rightsholders to identify and remedy the unlicensed use of those rightsholders’ works online. Such rightsholders include Reuters, Alamay, Associated Press and Agence France Presse and others.

bing.com/images/create? - Bing image creator is one example of an easy to use AI picture generator. There are many other free or paid services out there like it, simply search the internet for them. Here’s how easy it is, using the Bing link as an example. Click on the link to take you to Bing, and then type in normal English language the kind of image you want, e.g.“racing cyclist with red helmet riding fast through rural countryside,” which it generated in around 10 seconds. Or asking for “two men sitting at a computer screen talking to each other” also came back with four possible picture options within seconds. You can add whatever detail you like eg “not smiling” or “picket fence” or whatever you fancy to add.Plus you can name a style, eg “like Van Gogh” or “photorealistic” or “impressionist style”. It really is that simple, and a bit of fun. You can keep going back to your request and add more detail to see what it comes up with next to improve the intended target idea. Then copy or download the image you want for your work. And those images are totally unique, and do not (won’t yet, and hopefully never will) attract any copyright or infringements.

Below are some websites which offer copyright free images, e.g. under a creative commons agreement. Sometimes these require an attribution, which it is wise to do as a standard practice.