[Due to the extraordinary interest
generated by this issue, a more detailed discussion was found necessary. Hence a
series of articles are being presented links for which are given below as BB1,
BB2,BB3 etc....Naavi]
BB1:BB-2
: BB3:BB4:
BB 5:BB6:BB7:BB8:BB9:BB10
In our previous articles " we had discussed some of the
legal issues regarding Blogging. Let us visit a few more here.
Issue (4) Is the Blog owner responsible for Copyright Violations
if he posts a picture?
This is an issue which has been discussed extensively at
naavi.org and other places with reference to a website. Whatever is applicable
for a website should also be applicable for blogs.
We need to remember that Copyright is an automatic right
vested with the creator of a literary work. As regards a photograph, the
copyright vests with the photographer unless the photograph was taken on
contract on behalf of some body else.
It is also not necessary for the Copyright owner to specify
that he has a copyright on a material by affixing some symbol such as
©. It is also not necessary for Copyright to be
registered with any authority.
This means that prima-facie, any material reproduced from any
other website is a potential copyright infringement unless the copyright object
is being used under permission, or if it has been put in public domain by the
creator, or its use can be considered a "Fair Use".
Specific permission is when the creator has told specifically
on the website that the photograph can be reproduced without permission.
"Putting an object of Copyright" in the "Public Domain" is to
be implied when the nature of publication is itself indicates the intention of
the creator that it can be reproduced. One example often quoted is the "Letter
to the Editor" which the publication can publish while a personal letter from A
to B is not to be construed as being in public domain.
In the Blog environment, the "Comment" is meant to be
published and hence there is no infringement of copyright. But if a comment is
sent by somebody to a web site owner by e-mail or otherwise, it is not to be
automatically construed as being meant for publication.
"Fair Use" in any literary or artistic work includes
"Reproduction" for comments, or parody or journalistic reporting and does not
constitute infringement. However such reproduction is normally restrited to a
portion of the original work and not the entire work.
In the case of a photograph which is considered an "Artistic
Work", there is some ambiguity as to whether reproduction of a photograph is a
reproduction of the "Entire Work". Normally, when a collection of photographs
has been published by an artist and a few of photographs from the collection are
reproduced, the distinction between "Entire Work" and "part of the Work" is
explicit. If however a single photograph of an artist is reproduced it is not
clear whether it constitutes an "entire work".
However, the normal circumstance in which a photograph is
reproduced by the blog owner is when he comments on a photograph published in a
news article in some other publication. In this case the "Entire Work"
with reference to the "publication" refers to the article and the photo together
and the reproduction of photograph alone with comments may be construed as
"Partial Reproduction" only.
Therefore, a Blog owner who is not reproducing pictures for
commercial gain and is only on certain occassions reproducing some pictures for
commenting is within the framework of "Fair Use".
It is however recommended as a means of abundant caution that
the source of the picture is properly mentioned so that the credit is given
to the earlier publication.
The remedy in case of Copyright
infringement may be both Criminal and Civil. However, if the blogger did
not have the intention to make financial gain out of the publication, the
damages that can be claimed may be insignificant and "Intention to cause harm"
may also not be indicated. As a result, the possibility of loss occuring to the
blog owner is limited. If however the blog owner is having a regular habit of
reproduction of copyrighted photograph and there is an indication that he wanted
to make a commercial gain or a gain in any other terms by such publication, it
is open to the discretion of the judge in question to award both civil and
criminal penalties.
Naavi
December 10,2004
..Will Be Continued in Bloggers Beware..6
Related Articles:
Scandal in school shakes up Delhi..Telegraph
First Conviction Under Sec 67 of ITA-2000
Defamation on
Internet-Ivan Hoffman
Defamation-IVan Hoffman
What is Defamation?..libelxpress
