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December 25, 2015

Using Photos from the Internet: Copyright Ownership and Orphan Works

Bangkok Post, Corporate Counsellor Column

A picture is worth a thousand words. It’s an old adage, but in today’s accelerated digital economy, the concept is more relevant than ever. With more and more competition for consumers’ attention, many businesses—from global advertising agencies to local mom-and-pop shops—are turning to the Internet to find compelling images that reinforce their brand messaging.

Tied to this voracious demand, there is now a seemingly endless supply of photos and other images available online, and many businesses are using them liberally in their websites, blogs, brochures, and other materials. But where these pictures come from, who the original creators are, and who owns the copyright over them is often unknown. These are important issues, because businesses can’t freely use photos found online. Instead, they need to identify who owns copyright over an image and obtain authorization (through licensing fees or other arrangements) in order to use it.

Businesses face a real challenge, though, when they devote their best efforts to identify who owns a copyrighted image, but they are unable to do so. In legal terminology, when it’s not possible to identify the owner of a copyrighted work, we refer to the copyrighted material as an “orphan work”—that is, a work whose author or owner is unknown. For orphan works, requesting permission from the owner to use their works for reproduction or creating a new work can become an insurmountable task, which leaves businesses that want to use these images in a difficult position.

Rights of Copyright Owners

Copyright owners have exclusive rights over their works, including rights of reproduction, adaptation, dissemination, and licensing. Any use of a copyright owner’s photos without authorization may result in copyright infringement, which leads to both civil and criminal liabilities.

It may also result in the infringement of rights management information if the information that is used to identify the owner of the copyrighted work (e.g., author names, signatures, watermarks, etc.), which appears on the work, is deleted or modified. This is a criminal offense.

Copyright Works of Unidentified Owners

Orphan works are indirectly addressed in Sections 20 and 62 of the Thai Copyright Act. Section 20 states that works created by a pseudonymous or anonymous author will be protected for 50 years from the date of authorship. If the work is published during this period, the protection will last for 50 years from the date of first publication.

While orphan works are not strictly the same as anonymous or pseudonymous works, copyright law ensures that a work is likely to be protected even if the author is unknown. This protection may last beyond death, in which case the work would become a true orphan because the copyright owner would not be available to assert his or her rights.

Section 62 describes the presumptions of copyright ownership that apply in litigation, setting out the presumption that ownership of a copyright work which bears no name or claim of ownership will vest in the printer or publisher of the work. This does not, however, address who owns the work if the printer or publisher has subsequently gone out of business.

Under Sections 20 and 62, it is difficult for potential licensors to identify the owners of orphan works. It is a time-consuming process, and using orphan works may give rise to legal actions and/or financial claims to prevent further use by potential licensors.

Searching for a Copyright Owner

The Copyright Office of the Department of Intellectual Property provides a copyright recordation service that anyone can use to search for the identity of a copyright owner of a work for accreditation and/or licensing. However, the copyright recordation system is used on a voluntary basis, meaning that a limited number of copyrighted works have been recorded with the Copyright Office. This means that a substantial number of copyright works in Thailand have no formal recordation of their owners.

This is a challenge that exists not only here in Thailand but also globally. Some academic experts contend that if a potential user of a given work has performed a diligent search for the owner of the copyright—often by searching Copyright Office records and databases—the user of the work should be entitled to limited liability if the copyright owner later claims infringement. That is, if a business has tried its best to find the owner and failed, this effort should provide some level of defense in case of future legal proceedings.

In addition, other jurisdictions have discussed a range of creative options, including compulsory license schemes or the involvement of the government in the process of publication of proposals to use orphan works and royalty-fee deposits.

While these potential solutions sound attractive in theory, none of them have yet been implemented in practice here in Thailand. As a result, businesses face potential legal liability if they use photos that are orphan works in their materials. While this area of the law continues to develop, businesses need to be wary about the sources of their photos and other images. It is best to err on the side of caution and, wherever possible, use images only where copyright ownership can be clearly traced.

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