On 11 June 2020, the National Copyright Administration of China (NCAC) issued the first document of 2020: The Notice on Regulating the Copyright Order of Photographic Works (‘the Notice’). The full text is accessible here (in Chinese).
The Notice, as a departmental regulation (the NCAC is under the State Council), does not create new laws, but provide guidelines regarding how certain practical issues should be handled. It also restates several relevant provisions pertinent to photographic works in several existing laws, notably: Copyright Law of China (2010 Amendment, ‘the CLC’), Regulation for the Implementation of the Copyright Law of China (2013 Revision. ‘the RI CLC’), and Regulation on the Protection of the Right to Communicate Works to the Public over Information Networks (2013 Revision).
Opening section
Section one of the Notice makes two basic reaffirmations (this Kat’s supplementary explanations and comments are inserted in blue bold print):
‘Photographic works, as works protected by the CLC, should be original and conform to the characteristics of Article 4(10) of the RI CLC.
[Article 4(10) of the RI CLC:
For the purposes of the CLC and this RI CLC, the following expressions concerning works shall have the meanings hereunder assigned to them: […] (10) “photographic works” means artistic works created by recording images of objects on light-sensitive or other materials with the aid of devices;]
Photographic works with the theme of news events are not part of the current news stipulated by the CLC and are protected by copyright laws and regulations.
[Article 5(2) of the CLC:
This Law shall not be applicable to: […] (2) news on current affairs;
Article 5(1) of the RI CLC:
(1) “news on current affairs” means the mere facts or happenings conveyed through the media such as newspapers, periodicals and radio and television programmes;]’
No more ‘black hole drama’
The Notice contains ten sections, around 1,500 words in total, in which the term 图库 (image library, or stock images provider) is mentioned nine times in total across five sections. Incidentally, readers may recall Visual China Group (VCG), the largest stock image and media footage provider in China, which triggered a firestorm in 2019 when it claimed the copyright of the very first image of a black hole, along with the copyright of the Chinese national flag and the Chinese national emblem, as reported earlier in an IPKat post:
‘In April 2019, the Event Horizon Telescope (EHT) project team captured the first image of a black hole. VCG promptly put its own logo on the image and added it to its pay-to-use library without attribution to the EHT team, attracting criticism.
VCG apologised and swiftly took down the picture along with many other non-compliant images, which included the national emblem and flag. The storm may have temporarily subsided, but it has left several problems that are yet to be fully solved. Issues include the responsibility of platforms like VCG to review the copyrights of works submitted by contributors and to follow correct procedures to ascertain the rightful copyright owner.
The NCAC has since incorporated copyright protection of images into the aforementioned ‘Sword Net 2019’ special action and has been working on drafting standard practices for better regulation.’
The ‘Sword Net 2019’ online action went well. It deleted 1.1 million copyright-infringing links, captured 10.75 million pirated products, investigated 450 online copyright infringement cases (including 160 criminal cases). At present, as the NCAC notes, the Notice is to further consolidate the ‘achievements of sword’ by stipulating the obligations of image libraries and their norms of conduct, inter alia, in the following sections:
Section five:
‘The image libraries should carry out authorisation and rights protection activities in accordance with the principle of good faith. It is not allowed to claim made-up copyrights to unauthorised photographic works, and to provide unauthorised photographic works and claim rights to others. Nor is it allowed to carry out improper rights protection activities for the purpose of speculative profit-making. [the connotation of ‘speculative profit-making’ may require further explanation]’
Section six:
‘Image libraries which provide users the photographic works that they collect, organise or edit, copyright in which has expired or in respect of which the copyright holders have given up their economic rights [e.g., CC0], shall indicate the necessary information such as the author and the range of available copyrights, and shall not infringe other rights enjoyed by the author according to law. The fees in the name of the royalty for copyright licensing are not allowed in these cases. [so… it is ok to charge a fee in other names?]’
The two sections above reveal the so-called ‘phishing indemnity business model’. As reported by XinhuaNet, some image library business operators deliberately ‘deploy’ a large number of images that they manage on various free gallery networks and public networks, and then play a waiting game. With the help of an internal system equipped with technology integrating big data, artificial intelligence, automatic crawler and automatic image comparison, these image library business operators are able to track millions of data on a daily basis, as well as being able to locate the users. At an appropriate juncture, they reach the users and claim indemnity. A sizeable proportion of the profits are driven this way.
The business model per se may not sound problematic to many, because well, infringements must be stopped. As it is not always realistic for copyright holders to monitor their works efficiently, platforms like VCG actually help in collecting the fees from users and distributing them to copyright holders.
Like most things, the devil is in the detail. Taking VCG as an example, the uploaded images and copyright information are not reviewed in a rigorous manner, which can be observed from the obvious mistakes – for example, the black hole image. Yet all the images, after being uploaded into the image library, are given a digital VCG watermark. Thus, there are a considerable number of images stamped with a VCG watermark, which look to be well managed, but in fact, copyright holders may not have been informed at all.
From the users’ perspective, when facing massive numbers of images, they are in a position of extreme information asymmetry. There is a saying from Zhuangzi, thus: ‘my life has a boundary, but knowledge has no boundaries. If we use the bounded to follow after the unbounded, there will be trouble’ (吾生也有涯，而知也无涯。以有涯随无涯，殆已). Similarly, with the mindset of avoiding such ‘trouble’ and any subsequent litigation, users do not tend to challenge the authenticity of the information indicated by the watermarks. Knowingly taking advantage of this prevalent mindset, some platforms’ activities become increasingly akin to ‘phishing’.
Watermarking is a big thing. In 2014, the Supreme Court of China (‘the SPC’) heard a copyright case: Huagai Ltd. v. Zhenglin Ltd. [No.57 [2014], Civil Retrial] (see the full text of ruling here, in Chinese). This case was selected as one of the SPC’s 35 Guiding Intellectual Property Cases in that year, principally due to the watermark aspect of the ruling:
‘The act of posting and selling images on the official website of the professional image companies is different from the traditional concept of ‘publishing’, but it is also a way of ‘making it public’. The ‘signature’ of the work on the website, including the rights statement and watermark, constitutes a preliminary proof of the attribution of copyright rights, in the absence of the evidence to the contrary.’ (Summarised by ChinaCourt.org, with emphasis added.)
The SPC’s ruling does not give any substantial preferential treatment to the notion of a watermark; however, in practice, the ruling has been misinterpreted by many, intentionally or not, as using a watermark as a powerful tool of claiming copyright ownership. Thus, the Notice in section ten explicitly states that the rights’ statement and the watermark on the photographic work cannot be used alone as evidence of copyright ownership.
Photographers have questioned how certain platforms, like that of VCG, have been undercutting the contracted photographers’ shares of profit in the upper reaches, whilst in the downstream taking an aggressive approach towards users. Indeed, many have been eliminating certain remedies from possible solutions, such as taking down the said image and issuing a public apology. This has been gradually adversely affecting both the interest of the photographers and the industries to whom the visual materials are crucial in order to produce high-quality content. In response, the Notice expressly stipulates several obligations that the platforms must comply with in order to recalibrate the balance of power: the protection of the author’s personal rights and the right of receiving remuneration (section two); the eligibility of collective management associations (section three); the improving of the copyright management system (section four); the notice and takedown process (section seven).
The Notice has put forward much higher requirements towards the image library operators, such as VCG. To be fair, in reality, such requirements maybe unrealistic for VCG to realise by its own unaided efforts. Each year, the number of images keeps increasing. Humanity is expected to take 1,436,300,000,000 photos in 2020 (source: mylio.com), and without multi-party cooperation and strong technical support, it will be mission impossible for organisations like VCG to make substantial progress. Thus, the Notice in section nine encourages multiple parties to cooperate and join forces in promoting an orderly image market.
Photo courtesy: Jin’s mum 🐈
[Originally published on The IPKat on 29 June 2020]