From the Executive Summary:
There is no greater challenge to creative production in the digital age than enabling frictionless licenses between users and owners of copyrighted works. A particularly compelling illustration of this challenge is the millions of copyrighted photographs and other visual works that are uploaded to the Internet daily without permission from copyright owners. In democratizing the creation and distribution of visual works, digital technologies have also transformed the landscape that effectively defines creators’ rights and consumers’ ability to track ownership information.
For many photographs uploaded to the Internet, ownership information is fragmented or entirely unavailable. Copyright registration is of limited help—photographers face special barriers to registration because of the sheer volume of the works they produce, and they also have few incentives to record ownership transfers. Even for registered photographs and illustrations, metadata and security mechanisms are often missing or, if present, are regularly stripped out by Internet Service Providers, instantaneously making many photographs orphan works. Moreover, even if a work is registered and ownership transfers are duly recorded, there is often no ready mechanism for potential users to connect a work they wish to use with the corresponding copyright registration. Without ownership information, licensing of photographs does not occur. Potential licensees cannot contact the owner for the right to use the work and, therefore, must risk an infringement lawsuit or simply walk away. Moreover, many users may be unfamiliar with copyright rules and procedures, and make use of images without appreciating the risk. These impediments to licensing undermine one of copyright’s central goals—to encourage production of creative works by granting authors a bundle of exclusive rights from which they can profit, and to encourage the use of creative works by offering users easy, if not costless, means for exploiting those rights.
Although the digital age offers tools and opportunities to meet these challenges, digital solutions are often tailored to the needs of high-value users, such as commercial publishers, and print and broadcast media. There are fewer, low-cost solutions available to “long-tail” users, such as small businesses, website and mobile application developers and designers, bloggers, and community organizations. For long-tail users, the limited licensing options and high transaction costs of existing solutions act as barriers to lawful, licensed uses of photographs or other images. Bloggers, for example, are a vibrant portion of Internet communities, yet many encounter problems in finding, and obtaining rights owners’ permission to use, copyrighted works. Bloggers complain that they often lack access to the original image owner, and many independent bloggers find that commercially available products are too costly for their limited budgets. A system that enables quick and seamless connection between image owners and users would be a powerful tool for bloggers and, indeed, all long-tail users interested in licensing photographs for personal and professional use.
In a Notice of Inquiry for Copyright Protection for Certain Visual Works (Federal Register, v. 80, n. 79, 4/24/15), the Copyright Office solicited responses and potential digital solutions to documenting ownership rights for photographs and other visual works. The Stanford Law School Law and Policy Lab Copyright Licensing Practicum (the “Practicum”) responded to that call with a prototype designed to support the needs of both photographers and long-tail users. Working closely with the Copyright Office, the Practicum developed a user-friendly, low-cost, scalable, and automated online prototype platform to license photographs. As the Copyright Office aligns its own practices and initiatives to facilitate online licensing in the photographic marketplace, this prototype serves as a starting point to promote private-sector solutions and partnerships that facilitate frictionless licensing by making copyright information more transparent and searchable online and by automating and simplifying the licenses themselves.
Although photographers and other image creators have exclusive rights over their creative works, digital technologies have overtaken the ability to license, distribute, and monitor those works. This online licensing tool for photographs is one step towards helping photographers and other image creators exercise control over their work. This paper documents the underlying rationale for the platform, with particular attention to photographers’ and users’ needs, legal licensing protocols, and coding choices. It also lays out next steps in developing the platform into a robust and efficient online licensing system for photographs and visual images. Finally, this report describes how the licensing platform might grow into a nonprofit venture that connects users to collections housed in libraries and museums, as well as directly to photographers.
The prototype online platform enables:
– Potential licensees to quickly find accurate and up-to-date information about a photograph’s creator and copyright owner, and any pertinent licensing terms; and
– Licensors to efficiently license their photographic works in low-friction, low-cost transactions with licensees.
The platform embodies qualitative stakeholder analysis, complemented by extensive examination of relevant law and existing and potential solutions, tools, and technologies. Section IV describes a licensing framework system that leverages the PLUS Registry for Photographs (http://www.plus.org/) solutions, as well as the operations of existing industry stakeholders and service providers. As existing technology is poised to move rapidly towards possible solutions, we further propose that the Copyright Office develop an API that helps to encourage private-sector solutions.
The Prototype: https://copyright-license.herokuapp.com/
In the spirit of furthering private-sector solutions, this paper documents a low-cost, scalable, and automated online licensing system that serves both the creators and the users of digital photography. This basic prototype was made possible through our partnership with Code the Change, a Stanford University team of coders led by Andrew Suciu and Chris Yeh. The prototype is designed to interface with the PLUS API and Registry as a means for ensuring more accurate registration data across global networks. The prototype highlights the importance of a Copyright Office API to empower innovation by third party developers.
This online platform:
– Simplifies license and payment processing through an online marketplace portal for photographs. This platform enables photographers—amateur or professional—to license their works directly to end users. Payments are processed by a third party vendor, Stripe, which, at the time of this writing, offers the lowest transaction fees in the industry and the most powerful API tools.
– Generates customized licenses and pricing schemes through an automated questionnaire that supports variable inputs.
– Relies on industry empirics and best practices to develop an automated, customizable license that integrates easily with other platforms.
We refer to the current version of the licensing platform as “Version 0.9” to reflect the fact that a few third-party technical specifications stand between it and an operational prototype. These third- party specifications, when completed, will be integrated into the platform and, among other functions, will enable the platform to:
– demonstrate that an API can enable third parties to directly access and link registration information to their databases;
– adopt a standardized data format for embedding copyright and license data in photographs via the PLUS Registry;
– encourage the adoption of image tracking mechanisms, including embedded metadata and watermarks, or enhanced image recognition, building on tools within the PLUS Registry.