Saturday, November 28, 2015

C-Registry - The Discourse Continues


If readers of this blog found me promoting (or having) a photo contest, and in the T&C was language akin to "you grant perpetually all rights for free when you enter..." or some variation thereof, not a single person would believe me if my excuse was "oh, the lawyers wrote that up, I didn't see it, I'll change it now...". And, you should fully doubt that mea culpa. Why? Because rights and contracts and the analysis thereof is what I do when I am not making pictures.

On a comparative note, if someone were a chronic car thief, should we applaud when he just steals from department stores? The argument would be "oh, but he's so much better now..." when what he is doing is still theft.

So, it is with the perspective of the above to scenarios that the changes that C-Registry has made are dubious. The people who run C-Registry have been around a long time in this business. A LONG TIME. The notion that they didn't know what they were doing or, as they note in their own words as citied in an AMSP Member Update - "In retrospect, we were overly zealous with our marketing language" is just not passing muster. I submit that they knew EXACTLY what they were doing with that language, and are only now pulling back because they were called out on it. Further, it has been suggested that they have made changes to their offering to answer the concerns put forth, yet there are many other points of serious concern that remain.

So, let's continue the discourse. If C-Registry is truly committed to helping photographers, rather than lining their own pockets, straight-forward and complete answers to the following questions need to be answered.

Question 1
Until recently, your terms and conditions included express provisions allowing you to license registered images at your discretion. You have explained elsewhere that this was a mistake and that you regret including those provisions. You have removed the provisions but left in provisions that allow you to add those terms back into your terms & conditions and any other terms at any time, at your sole discretion. Setting that aside, please explain the intended purpose of those licensing provisions clearly and succinctly.

(Continued after the Jump)

Question 2
Just to set the record straight, please answer these yes or no. After answering each of the questions yes or no, you can provide as much detail as you wish.
In the event that c-registry identifies an instance of a registered photograph appearing on a web site, are there any circumstances under which c-registry would require a fee, royalty, special paid subscription/membership level or other compensation to c-registry for:
  1. The act of discovering the use? Yes or No.
  2. The act of informing the rights holder of any of the details of the use? Yes or no.
  3. The act of mediating a dispute between the rights holder and the image user. Yes or No.
  4. The act of billing or invoicing for the image user a fee or other payment related to the use of the image. Yes or No.
  5. The act of facilitating a grant of license between the rights holder and the image user. Yes or No.
  6. The granting of a license on behalf of the rights holder? Yes or No.
If you answered yes to any of the above, please describe.
Question 3
While there is currently no mention of image licensing on your site, are there any circumstances under which you might later solicit registered photographers to offer their work for stock licensing via any stock licensing platform or site? If so, describe.
Question 4
After editing the copy of your site recently, all of the references to “orphan work” were changed to “work of unknown origin.” As of today, c-registry is advising image users that “If an author has not claimed copyright for that work and is unknown by any other means, it could be considered “A Work Of Unknown Origin” at that moment in time. In this circumstance, you can and should create a verifiable, trackable report indicating that the work in question was “unclaimed in The Copyright Registry” at the time.”
  1. What is the meaning of “work of unknown origin?”
  2. Does the designation of “work of unknown origin” have any bearing on a user’s ability to proceed with usage of an image?
  3. C-registry is soliciting image users to buy certificates that a photograph is a work of unknown origin because it is not registered on c-registry. What possible purpose might such a certificate serve as of today?
Question 5
In your revised terms & conditions, c-registry requires that image users agree to the following terms: “In the event that the copyright owner or creator of CONTENT are unknown or are known but can't be found an “A Work Of Unknown Origin,” YOU agree that: YOU will pay a reasonable licensing fee for your use or publication of A Work Of Unknown Origin, negotiated in good faith, should the rightsholder of that CONTENT become known to you during or after use or publication, and…” If the CONTENT is A Work Of Unknown Origin used editorially, use or publication should bear a credit line that indicates the creator name if reasonably known or source of the CONTENT if reasonably known.” While the terms also require that users obey the law,
  1. Why do you include this provision at this time? It leaves infringers with the impression that they may proceed to use work provided that if the rights holder appears, the infringer will negotiate in good faith. Isn’t it illegal to proceed with the use of a work without the rights holder’s permission, even after a failed search at c-registry?
  2. What is the purpose of requiring that infringers print a credit line that informs others where the work can be found?
On "Reclaiming"
On the C-Registry home page, after all the edits, their marketing language remains alarmist, and misleading, when they write - "Reclaiming your works online is critical...Take action today and begin reclaiming your works."

Reclaiming? Dictionary.com defines "reclaim" as:

Reclaim: to claim or demand the return or restoration of, as a right, possession, etc.

The problem is - there is nothing to "reclaim." While the copyright will always be yours unless you expressedly transfer it, no language in any version of the orphan works bills that have been proposed would allow a copyright holder, once a work has been deemed an "orphan", to stop the work from continuing to be used in whatever manner it was after it was deemed an "orphan." There is no mechanism to "demand the return or restoration of, as a right, possession". The use of the word "reclaim" is, at best, misleading.

Lastly....
One of the most important notes to make here, is that if C-Registry is a success and is purchased by a major stock agency or media company, the operation of the registry will fall under the control of a single stakeholder, and nothing in its charter or other language suggests that they would not do this, and that should scare people.

Your Turn
There are, no doubt, other questions out there that remain, so feel free to pose them in the comments below if I have missed something. I await full and complete answers to the above questions, without any spin.
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