Cyberlaw

 

Flickr Commons and what “no known copyright restrictions” really means

I begin by presenting you the different types of license disclaimers that may mark any work posted on Flickr: „All Rights Reserved”, „Public Domain Work„, „Public Domain Dedication (CC0)„, „Attribution„, „Attribution-ShareAlike„, „Attribution NoDerivs„, „Attribution-NonCommercial„, „Attribution-NonCommercial-ShareAlike„, „Attribution-NonComercial-NoDerivs„, „United States government work„, „No known copyright restriction„.

As you can see, the CC licenses are listed separately from the ones corresponding to public domain mark, and also separated from the most appealing “no known copyright restrictions” license, which has become very exploited, especially since the Flickr Commons project, which has been promoting it worldwide.

flickr_cc_logos

Flickr Commons is a very interesting project that a lot of private and public institutions have joined, participating in something that we may call a “great sharing event”. Under the motto Help us catalog the world’s public photo archives, many museums, institutes, libraries, private collectors and curators have uploaded hundreds of photos and images on Flickr’s platform, with the purpose of encouraging the study, use and remix of the images in imaginative ways. This sounds very good, I know, but a very close look at what this „no known copyright restrictions” license really is will help us discover the one and only perpetual truth of the online environment – never trust without reading or stop judging by appearance.

1. “No known copyright restriction” is not equivalent to “no copyright restrictions”

I admit that this might be confusing since these phrases are highly similar. The difference is mainly directed by the word “known” which diverts the focus from “restrictions” (in general) to “restrictions known” by someone (if any).

So, “no copyright restrictions” means (in general and without additional info) that the forbiddance specific to copyright is not applied, and “no known copyright restriction” means that if there are some copyright restrictions, they are not known.

The verb know is also traditionally related to liability, because if we consider every license as including different types of statements, we must definitely accept that, in general, no one could be held legally responsible for facts and circumstances that are stated to be outside his knowledge (except, of course, for law knowledge and indirect liability for ex.).

The Rights Statements specific in the case of every collector, expressly indicate that no warranty is involved:

It is possible that the sharing of these images may inadvertently infringe upon the rights of copyright holders unknown to us. Texas State University cannot guarantee that your use of the images shared here on The Commons will not violate the rights of unknown copyright holders. Texas State University cannot be responsible for any copyright violation resulting from your use of these images.

the Museum of Photographic Arts cannot guarantee that no such restrictions apply. Furthermore, the Museum of Photographic Arts does not warrant that the use of these images will not infringe on the copyright or other intellectual property rights held by others.

2. No known copyright restrictions means that there might be some copyright restrictions

This is a true fact and must be admitted by those who choose to use the photos included in the Flickr Commons archive. As I previously mentioned, only known restrictions are excluded, which means that there are some restrictions (unknown) that definitely exist and are applied to some photos.

If one takes into consideration the possibility of using some of the photos communicated under this license, it must also be mentioned that the above explanation must be considered collectively with those Rights Statements specific to every collector. As you will notice, the majority of them indicate very precisely that, in addition to those unknown copyright restrictions, there are other specific restrictions that the public must be aware of.

Our archive are to be used for educational, historical research and personal purposes. The images can be shared with proper credit given to the Directorate General; however they cannot be used for commercial purposes.
These images are presented here solely for enjoyment and personal research. It is your responsibility to determine and satisfy copyright or other restrictions when using these images.

 The phrase “they cannot be used for commercial purposes” certainly indicates a restriction on uses with this specific target. So, if someone wants to use this image in an online banner, or wants to benefit from it in any other way, there will be reasons to consider any of these as copyright infringements.

 4. The license must be read carefully, because every institution or curator has its own Rights Statement even if they uploaded the images under “no known copyright restriction license”.

As I mentioned in the previous point, the general terms available for any Flickr Commons archived work, must be interpreted together with the terms specific to every collector.

5. “No known copyright restriction” does not indicate a public domain work.

 In the case of some hypothetic future uploads to Flickr Commons, one must pay attention that the public domain “license” is presented separately, and if someone wants to indicate his work as one already fallen into the public domain, he must choose Public Domain Mark or Public Domain Dedication license instead of No known copyright restrictions.

I am back at the full text of “no known copyright restrictions” license and, as it can be seen, the wording also indicates that a work may fall under these terms (only) if one or more of the following instances occur:

The copyright is in the public domain because it has expired;

The copyright was injected into the public domain for other reasons, such as failure to adhere to required formalities or conditions;

The institution owns the copyright but is not interested in exercising control;

The institution has legal rights sufficient to authorize others to use the work without restrictions.

It’s true that the public domain is also cited but the public domain is not the only example, and without precise indication on each work, the public will not know for sure the exact circumstances determining this type of license.

In addition to this, the concept of public domain is far from the terms presented above, because no restrictions should exist in the case of public domain works except for the ones corresponding to misappropriation.

And because it is very important for all of us to understand the principles applied to any public domain work, it must be reiterated that the public domain cannot coexist with restrictions, such as those mentioned above. The commercial use is not prohibited for works that belong to the public domain, and this is only an example.

The Creative Commons have developed a special mark for public domain works, and the terms that must be taken into consideration are meant to help people understand the meaning behind this specific indication. But I will talk about all of these in a future post.

Monica Lupașcu Romanian Lawyer since 2005 with LL.M. in Intellectual Property Law. She currently activates as European Trademark Attorney and internet and technology legal practitioner.   monica.lupascu@nullcyberlaw.ro

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