Nearly every website, blog, or webpage on free hosting has a few images or links that could be construed under the new Australian Copyright Law to be infringements. Small businesses frequently use images from Google to provide information about their services or products. Technically, most of these images are Intellectual Property.
A picture of a product can be construed as theft, or it may also be seen as a source of free advertising - not just in a conventional marketing sense, but also - if the web designer links to the product description on the manufacturer's site - a means to increase the visibility and page rank of the product, and manufacturer.
This would be an example of a "deep link" and an "external link" - a link that points to a page other than the homepage without a reciprocating link from the indicated site. Search engines give special consideration to such links.
Even if there is no link, the image is still free advertising; like someone passing out pictures of your product for free.
Professional Ethics
Often, a client approaches a web designer with a list of links to sites that they like, or chooses a template from the designer's portfolio of templates.
A professional web designer will discuss with the client the costs of obtaining licenses to use the images, but too often will accept whatever images a client presents as licensed. If there is some question about the ownership of images the client wants on the site, the designer will discuss the risks and ask the client to be aware of them.
Most professional web designers, large and small companies, have purchased licenses for libraries of images. They use these images to construct the templates.
The licensing of images can get a little complicated though.
There are very few good images available for free and in the public domain.
Ethically, the designer would explain the concepts of copyright, ownership and
fair use. And that the client may be stretching the concept of fair use
by using the image on a for-profit site. For small businesses, the
concept of fair use was played pretty loose across the Net. If an the owner received a complaint about the use of an image, they would have it removed.
Often, after the initial hard line complaint, the site owner could ask if they could use the image. Most often the answer was, "Yes, for a small fee."
Only Practical
Even moderately-sized companies have thousands or even tens of thousands of professional images of their products. The small fee helps them recoup some of the costs for nothing more than the exchange of a couple of emails.
Larger companies have departments set up to deal with this sort of thing. It's become a little-known cottage industry for some companies.
Some companies short cut the whole process by sending an email containing a stern warning about the costs of copyright infringement with an expression of gratitude for the free advertising, and a form to be sent in with a fee. The website owner receives a license in return.
Often the licensed image is not the one that has been used though. The copied image is often from an ongoing marketing campaign and central to the marketing concept. A few choices are offered from images unused by the campaign.
The license almost always requires a link and/or a caption stating "Courtesy of XXX Corporation 2006".
More than one website has become a licensed dealer by stretching the concept of fair use.
The goal for business is not to get involved in expensive litigation, but to find a win-win situation for all concerned.
This may be the most important reason for leaving copyright infringement to civil law. Once criminal law is involved, neither side really wins.
Another source for product images is the original photographer. He or she will take hundreds of shots, but the company will only buy a few of them. The contract may allow the photographer to resell the remaining images. It's a negotiated point to reduce costs. If the company maintains control of all the images, the photographer will charge more.
Image Catalogs and Libraries
What happens to all those unused, unlicensed images? Often, the photographer will set up a website or find an online cataloger site to sell them.
The same caveat has to apply to every image: Check the license.
Be careful, no matter what the published license, of any image that contains an identifiable product or logo. The seller may not have the right to sell rights to these images.
Public domain
A lot can be done by combining (public domain and licensed) images using an image
editor like Photoshop. One mundane image can be combined and edited
with another, producing striking results.
Don't make assumptions about Creative Commons copyrights. Look at the terms of the No-Derivs version.
Watch out though.There thousands of sites which advertise "free images". For the most part, it's not quite true. Even if the site offers public domain images, they will charge for the download.
One advantage of purchasing public domain images is that they can be edited. The site isn't selling a license to the image, only charging for cataloging and downloading.
Some large companies have placed thousands of clip art images into the public domain, such as Microsoft.
In another example, Microsoft has public domain logos which can be used by anyone, and logos which indicate a relationship with the company - such as a Microsoft Certified Systems Engineer (MCSE) a Microsoft Certified Trainer - which can only be used by those who qualify.
Catalogs online
There are a wide range of licenses available for image libraries and collections:
- Some sites sell licenses on an image by image basis. Other sites will sell a license to a catalog or library suited to a particular purpose.
- Many web designers purchase general purpose libraries to construct their portfolios. Often, the catalog will offer all the images to be used to construct a portfolio, but will charge when the image is used on a website.
- The same license will often allow the use of the image in other promotional material.
- Some companies will sell a license to use a collection of images on a website or limited promotional material.
- Others will offer the use of the collection free on a non-commercial website or portfolio only if a prominent link to their website is displayed. Sometimes, the collection can be used on commercial websites.
- There are a few sites which offer their images free for any use. However, you do get what you pay for. There are also a few sites which are committed to the free exchange of information philosophy of the World Wide Web where good images are really free, such as the Morgue.
Pricing
Licenses to use images are offered on an image-by-image or collection (library) basis.
Sometimes, the image is sold based on the size or resolution the buyer chooses.
Rather than limit choices to collections determined by the seller, some sites sell 'credits' which allow a number of images for the user to combine.
A license to use an image may cost anything the seller wishes. Pricing may be as low as $10 per image to a few hundred dollars. Prices for Australian lifestyle images have increased dramatically over the last year, for example, anticipating the more stringent requirements of thousands of websites.
The more expensive images are those that are considered 'Art' by professional photographers. These images may cost a few hundred dollars each, but the effect can be worth it.
Summation
For a relatively low cost, a web designer or owner can find images to make their site attractive and professional. Without trying to wade through all the possible options and pitfalls, the caveat remains: Check the license, and be sure you can do what you want to do.
The sad fact is that most of the facts, practice and ethics described in this article are not understood by those who crafted these laws.
There is no question, however, that the new copyright law with its harsh penalties which allow no provision for warnings or a grace period, will cost owners of Australian business websites to more, and force ISPs into an enforcement role which is beyond their moral and ethical role. As has been noted repeatedly, there is no 'Safe Harbor' provisions in this new law.
The strictures of 'Fair Dealing' are not in keeping with the patterns of ethics and practice already in place on the Internet, for commercial or non-commercial uses, and attempt to redefine these roles throughout the world into the arcane - indeed archaic - Australian meanings and model. These arcane definitions in use in Australia are not understood by the broader Internet and should not be forced upon it.
These issues will be just one more thing that every small businessperson in Australia will have to learn to manage. For many, the burden of skills required to be a small or home business is already too great, in financial and in terms of what they must learn and master. The requirements of this law will diminish the number of small business owners, and reduce their profits. If the fines are imposed, the cost will simply end the business.
Whether those who crafted these laws took any of these facts into account is clearly questionable.
For every small business that goes out of business, 3.4 people will need employment, according to the ABS. If 10% of small business are affected, that will mean 782,00 people who will need jobs.
Throughout this article, I've tried to offer links to some examples I found by searching on Google for "free images". The search returned about 10 million results. I've added the perspectives of my own experience in over 10 years doing web design and corporate training.
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