by John Henshall

©opyright. A word which strikes fear in the mind of any would-be transgressor. Oh yeah?

©opyright. A word which raises the blood pressure of any photographer who has had his images ripped-off. And quite rightly so.

©opyright. A law which none of us would ever violate. Not never. Not no how.


Really? The Federation Against Copyright Theft (FACT) claims that more than 21,000,000 pirate videos exist in UK homes and that this jeopardises 47,000 jobs in the UK film industry.

Three years ago I made the mistake of saying, on a panel at 'Focus On Imaging' 1994, that the 1988 Copyright Designs and Patents Act would be about as much use, in this age of the Information Superhighway, as the law which requires the drivers of motor vehicles in Britain to have a man walking in front waving a red flag would be in Motorway Britain.

'Mistake'? I meant what I said but forgot that we do have a tradition of 'shooting the messenger' in this country.

Some folk took my remarks to be incitement to break the law. No way. Just a warning that the policing of infringements is well nigh impossible. Be realistic - how much time do you think the police have to follow up every crime today? And how high would an infringement of copyright figure in their league table of murders, muggings and robberies? So you would probably have to do your own policing. "Evenin' all. May I have a look at all the pictures you have at these premises? Hello, hello, hello, what have we here then?" But isn't it an offence to impersonate a police officer?

Soon after I expressed my controversial opinion, I heard that the leader of one of the photographic associations was so incensed that he was checking my rights to all the images I had used in print. Such processes were once called 'Witch Hunts'. A scan of the front page of the 'Daily Mirror' was identified as my possible downfall. I had scanned the paper to show the use of digital photography from the Lillehammer Winter Olympics and had taken care to obtain the permission of the photographer (Phil O'Brien of Empics) - but what about the other elements of the front page? My heart sank, so I telephoned Mike Ives, the Mirror's Night Picture Editor, to throw myself on his mercy. "Did you reproduce the whole of page one?" he asked. "I'm afraid so," I admitted. "That's fine - no problem - it's what we call a 'rag out'."

How, then, do we look after our copyrights? Do you want to spend time in a draughty court room corridor, perhaps wasting good earning time, trying to get Grandpa Smith convicted for making colour laser copies of his grand children's portraits to 'sell' on to his children? Be realistic, only the lawyers would profit and no jury would be likely to convict Grandpa Smith - whether it's the law or not.

Although ignorance is normally no defence in the eyes of the law, incredibly, it can be in the case of copyright. And a jury might well feel that, if he'd paid for the portraits, Mr Smith was entitled to copy them as he wished. Take a straw poll among ordinary people you meet. I did. Nearly all I asked felt that making copies would be perfectly legal. And all these 'ordinary people' are the kind you would find sitting on a jury. It's a bad law if the world at large don't know about it or understand it.

Suppose now that Grandpa Smith was a photographer, or even a lawyer. That might put a completely different complexion on matters. In natural justice, knowing that something is wrong is much worse than mere ignorance.

Like many of you, I have had my copyright infringed on many occasions.

One particular image, of a Horse Guard in Whitehall, has been very popular. Undeleted - with my permission - from a digital camera returned to the manufacturer after review, the image soon found its way out - without my permission - as a digital file sent to distributors, and printed out and framed for the wall of the office. It even appeared as an illustration to someone else's review in the UK edition of MacWorld - though I know that the editor acted in good faith, believing that it was copyright cleared. The first mistake I had made was in not irretrievably re-formatting the camera before return, rather than just nominally deleting the images. I then allowed a respectable and trustworthy employee of the company to undelete the image for his own interest and use. Then someone else saw the image on his computer and took it to be alright to use for other purposes. Another mistake I made was in allowing the image file to be included on a CD accompanying a book, without first burning-in a big copyright notice.

Of course I could have taken action. But what you have to take into account is that you will, almost certainly, lose the client. So I decided to grin and bear it, trying to be flattered that so many people thought the image worthwhile. The indignity followed soon afterwards, when the company's PR agents phoned to ask if they could use the image for another client. I quoted a very reasonable £100, only to be told that they expected only to give me a name-check. Explaining that my family couldn't get nourishment from credits made no difference, so the conversation ended with a very brief goodbye, the second and last word of which was "off".

That same image is now on my website. But is it safe here? With experiences such as this, it would be easy to become paranoid - indeed many photographers and photo libraries are too scared to put their images on the web in case they are pirated. The fact is that a pirate could get better results by re-scanning the picture from the pages of a magazine than by using a low-resolution, highly compressed digital file from the Internet.

An enlarged section of the original camera file

Section of the printed image as reproduced in 'The Photographer' August 1994, re-scanned from the printed page using Agfa DuoScan desktop flatbed scanner.

Same section from the version here on the website. Note the lower resolution - the quality of an image scanned from the printed page is much higher. If the whole of the web-resolution image was reproduced on a printed page at 300 ppi, the resolution would only provide a sharp image 1 x 1.5 inches.

Recently I have had my copyright infringed both by another photographer and by a lawyer. Both should have known better, especially the legal man, who once was a frequent writer on the subject. No one is perfect, but we should always try to practice what we preach.

These recent infringements of my copyrights were of images I had placed on the Internet. If the pirate wants only to re-use your image on his own website, copying it from the Internet is very easy. It even saves the job of scanning and the little-understood techniques (especially among inexperienced web designers) of effective image compression to save bandwidth and reduce download times. It's not just text and photographs which are the problem, background images and scans of logos are copyright too.

My image of a grey background may not look much but it took about a fortnight to get right. First, I read Ansel Adams' autobiography, where he expressed his opinion about the best background on which to display prints. Taking his views into account, I made up a distinctive textured background image and spent a lot of time adjusting the levels to make it work well on computers with displays ranging from 256 to over 16 million colours. Not only does this work well with images but it gives the website a distinctive look.

To make the BIPP website different, I used a warm version of the same texture. When a copyright expert used this and my scan of the BIPP logo without permission on his website well, it's wrong but hardly time for court action. To err is human - in fact, it's reassuring to find that he's only human, too.

The best way to learn to design web pages is to look at what others have done. Surf the web until you find someone else's page you like, then select View>Document Source and you are immediately into the HTML code which makes the page work. In the HTML are details of the jpg and gif format files which the web page uses. It really is that easy, so it's very tempting to 'borrow' ideas and elements to start your own website. The whole ethos of the web is free and easy, so it's easy to forget that everything here is copyright.

Way back in 1994, when the Internet was still little used by the masses, that same leader of another photographic association ventured to suggest that even the displaying of someone else's images on your computer was a copyright infringement. So where would this leave us with viewing web pages? It would be taking matters too far to suggest that this constitutes a copyright infringement. But suppose you like the pages you see and decide to save code to your hard drive for analysis? Or you make hard-copy prints? And what about the fact that web browsers actually copy images to a cache, to save downloading them next time the page is accessed. This caching involves transferring the images from someone's web server to your hard drive. You have copied the images - probably without realising it. But, when you log off, it would be quite possible to find the cached file of my Guard and open it in Adobe Photoshop. Now we really are in a grey area as far as copyright is concerned. Hopefully, what your browser has done for you can be defended as 'fair use'.

So where do we seek advice? There is an essential book about the law as it applies to photography. Adrian Berkeley's 'The Focal Guide to Photography and the Law' (ISBN 0 240 51352 5, published by Butterworth-Heinemann Ltd, £12.95) is a mine of important information. Unfortunately, being a book published 'way back' in 1993, in Internet terms it is not very comprehensive and not kept up to date.

This highlights some of the major advantages of the Internet over conventional publishing. It is easy to update an Internet page with the latest amendments to a document. With a printed book, you have to wait until the next edition comes out. Add to this the time taken to print and distribute a book and the chances are it will be out of date before it reaches the bookshops. Another advantage of the Internet is that authors do not need to defer to the press barons. The Internet has no expensive presses to control. The Internet is democratic; there is no power to wield. That is precisely why the big publishers are so worried about their futures. Of course, it is also more difficult for authors to get payment for their work on the Internet - but then it's difficult enough to earn more than a pittance for non-fiction.

If you are not already on the Internet I recommend that you subscribe to a dial-up service without delay. Imagine having the world's biggest reference library, constantly updated by millions of small publishers, just a mouse-click away. The importance of this resource is truly immense.

I used the Internet to search for items on copyright and came up with The Copyright Website which gives some well reasoned advice. But it's all about what's right and wrong - the [American] law - and we know that folk break the law, either unintentionally or deliberately. So what's the answer? What can we do about the problem?

One thing is clear: prevention would be better than cure. Stephen Johnson, a digital landscape photographer from Pacifica, California, maintains control by keeping his digital files to himself. That will do for those of us who have to deliver final prints but it will not cover those of us who have to send out digital files, for pre-press, for example. How do you restrict the use of your images if you must send images in digital form, or post them on the web?

With the increasing use of writable CD-ROM and the Internet as ways for photographers and photo libraries to display and deliver their images to potential clients, the need for an efficient protection scheme has become urgent.

'Code Cryptor' is an encryption program for protecting data on CD, computer disks and web sites. It uses the US Government Data Encryption Standard (DES) which has proven to be unbreakable, so far. It has a drag-and-drop interface and can generate Smart PIN (Personal Information Numbers) like those used to draw money from the banks' ATMs.

It is very easy to use. To encrypt a file, simply drag it onto the 'nCryptor' icon. The program creates a new folder entitled 'Encrypted', into which is placed the encrypted file and a linked Token - the private key that will be used to unlock the file. You can now send the encrypted file via the Internet or electronic mail - or 'burn' it onto CD-ROM or any other form of disk. The file cannot be viewed or used by anyone - other than the person to whom you have given the Token or smart PIN.

To maintain maximum security, the Token must be kept completely separate from the encrypted image file, and should be passed on to the client by other means, such as fax, or over the phone.

Once a file is encrypted, there is no way to trace the type of program used to create it. nCryptor scrambles the document to the point that it simply appears as a string of data. The Code Cryptor suite of software is Cross platform - Mac, PC and Unix - and will encrypt files created on all existing software. To decrypt the file, the recipient first drags the token onto the dCryptor icon, then drags the encrypted document icon onto the dCryptor icon. The decrypted file is placed into a newly created folder entitled 'Decrypted'. The user double-clicks the folder, double-clicks the document, and it opens. It is not even necessary for the client to own dCryptor, which is supplied free of charge.

Smart PINS allow the encryption of a CD-ROM containing any number of stock shots with a Token. You can then assign each individual customer a Smart PIN to unlock the images specified in the contract. The buyer can unlock the CD using the Smart PIN and access high-resolution versions of the images. Because the Smart PINs can be grouped together, the user doesn't have to enter a password for each image on the CD-ROM

Vital Source Technologies of San Antonio, Texas, are using Code Cryptor to protect medical information on CDs. The industrial version of the software contains a product called Code Plus, which has several additional features which will be useful for companies trying to protect their images. Code Plus can write a Smart PIN into the file itself and the Smart PIN can be traced back to the original customer. By maintaining a database of the Smart PINs, you can track who bought which images and when. This information can also be used to generate invoices. These file copies must be kept in a safe location in the event that a Token or Smart PIN is lost, for the Token is the only record that contains the information for the cryptographic key. Without it, you are out of luck. If you lose the Token, you lose the data.

The US Data Encryption Standard (DES) is reviewed every five years. And, because it is based on the cryptographic key - a randomly generated alphanumeric password - it has proved unbreakable for almost twenty years. It is thus one of the most secure styles of encryption available.

At the 1997 PMA convention in New Orleans in February 1996, Code Cryptor was selected, as one of the most innovative and promising technologies.

Free demonstration software is available from New Mexico Software Europe, or telephone +44 (0)1992 589579.

This article first appeared as "John Henshall's Chip Shop" in "The Photographer" magazine, April 1997.
This document is Copyright © 1997 John Henshall. All rights reserved.
This material may only be downloaded for personal non-commercial use. Please safeguard the future of online publishing by respecting this copyright and the rights of all other authors of material on the Internet.

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