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I really hope someone would be able to clear things up, because this question has been bugging me for a long time now.

Google Images (and frequently Google Search as well) shows images associated with your search (kinda the point of an image search engine). Yet, the Google platform is a commercial product and is there to make money by displaying ads. Even non-profit websites like Wikipedia or CC search which ask for donations (i.e. money making albeit not for profit), thereby using images in a 'commercial' (money making) context.

In the UK, commercial use of images may require a licence (a written permission). The licence must be obtained from the author (the photographer) and sometimes the landowner (I believe this is a branch of what is collectively known as 'third-party' rights, property rights in this instance, assuming the author didn't obtain such permissions).

One example could be the UK's famous Durdle Door which requires a licence, if photographs are to be used for commercial purposes. It appears to be a very similar story for sites belonging to National Trust and English Heritage. Yet, there is no shortage of images used in a commercial context without obtaining such licences (apparently) e.g. CC Search, Pixabay, Trip Advisor, Google and many others.

I appreciate this is a branch of the civil law and requires a 3rd party to actually raise it as an issue. I highly doubt any of the websites showing images in a commercial context request a permission from landowners around the UK - an unmanageable task. Yet, it feels like Google (or other websites) would not risk a lawsuit to show images unless they had solid basis they are allowed to do so.

Question: given that photos of many landmarks in the UK require a written permission (i.e. a licence) to be used for a commercial use, how exactly do websites (e.g. Google, TripAdvisor, Wikipedia and others) operate without infringing on 3rd party copyrights?


Clarification: I am less concerned with the author's copyright claims (like those in Perfect 10, Inc. vs Amazon.com, Inc) and more with the 3rd party claims. The UK's government website is pretty clear on that (emphasis mine):

What people cannot do on your land The CROW Act has a list of general restrictions that limit what people using their open access rights may do, unless you give them permission to do something on the list, or the right to do something already exists.

They cannot:

[..]

run commercial activities on the land such as:

  • trade or sell
  • charge other visitors for things they do on your land
  • film, photograph or make maps

[..]

3
  • It's not clear to me from the question what the consequences are of engaging in a commercial activity without permission. The question implies that the property owner acquires a copyright interest in a photographer's unauthorized commercial photographs, but that could just be an assumption. Perhaps there are other consequences instead. If the right does somehow accrue to the property owner, how does it work if someone takes a photograph for personal purposes and later decides to use it for some commercial purpose?
    – phoog
    Dec 22 '20 at 4:20
  • The consequences would be covered in the CROW Act. Yes, it is an assumption as stated in the question - you need a 3rd party to challange it. As for the other questions, it is certainly plausible, that's kind of what I am trying to establish - what's the 'loophole' (for lack of a better word)
    – Dawid O
    Dec 22 '20 at 8:52
  • I read the CROW Act, but I didn't see anything about copyright.
    – phoog
    Dec 23 '20 at 7:03
5

It depends.

Wikipedia is quite strict on its policies, and it only allows uploading images (and other media) that either are in the public domain or with a licence that allows to be reproduced (often, Creative Commons, CC).

If you go to the details of the image it claims that the picture is licenced under CC, with attribution to Saffron Blaze. So most probably Saffron Blaze got permision to take the picture, and he distributed it with the CC-Attribution licence.

When scrapping a web site for data, Google and other engines usually search for metadata (the robots.txt file) that tells them what to index and what to not. If a user gives them permission to index a picture by not stating restrictions in the robots.txt, they can do index it.

Of course, in both cases it might be that someone uploads a picture that he does not have permission to share. In this case the situation will, of course, depend on jurisdiction, but many laws have provisions that ensure that, if the content provider is dilligent in addressing copyright issues caused by the users, they are protected.

For example in the USA the Digital Millenium Copyright Act establishes "safe harbor" provisions that protects content providers if they give a way to denounce copyright infringiments and address those in a given timeframe.

5
  • 2
    "gives them permission to index a picture by not stating restrictions" - Kinda weird to say that, legally, they have permission simply because someone didn't state a restriction; that's not how copyright works in other contexts, after all.
    – D M
    Dec 20 '20 at 15:58
  • Google also technically doesn't "copy" the images, it deeplinks them.
    – Trish
    Dec 21 '20 at 10:59
  • Note that there is a difference in image use policies between Wikimedia Commons (which requires images be PD or under a free license) and en.Wikipedia (which accepts images under a claim of fair use, subject to several restrictions) although images from both are used in Wikipedia articles. Also, US courts might not enforce the 3rd party UK claims, as there are no such rights in US law. Dec 21 '20 at 14:06
  • @Trish Google does not simply link to images. They create and store thumbnail images, which implicates copyright because the thumbnail image is a derivative work. In the US, federal courts have ruled that this is protected by fair use. I do not know how this practice fares under other countries' laws.
    – phoog
    Dec 22 '20 at 4:10
  • @DM making an image freely accessible on the web implies at least permission to copy the image to the extent necessary to display it in a browser window.
    – phoog
    Dec 22 '20 at 4:13
1

The rights of a landowner, in general, include the right to control access to his land (but these rights are subject to, among other things, the CROW Act you refer to).

The landowner may consent to you coming on to his land. That consent may be subject to conditions (for example, don't take photographs, or don't take photographs to be used commercially). You may have rights under the CROW Act, but those rights are subject to the limits set out in the CROW Act.

If you don't comply with the conditions of consent, or if you exceed the limits of your rights under the CROW Act, then the landowner's action is in trespass. By entering the land to take photographs, for which you have no permission and no right, you are a trespasser.

Thus the "rights" you talk of are not akin to copyright at all. The landowner has no rights in the image, the landowner has only rights in his land. You may have done wrong by entering the land as a trespasser and taking photographs without permission, and you might be sued for damages for that (which might be determined, similar to copyright, by reference to the landowner's lost opportunity to license - give consent to - entry of his land for the purposes of taking photographs). However the landowner has no right akin to copyright and thus there is nothing intrinsically unlawful about the photographs, only the process of taking them. Hence Google and others are doing nothing wrong.

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  • I think you've fixated on a very specific statement in the question (which is not a comparison; you do need permission to take certain photos of some real property in the UK, not just to copy pictures of that property) and have not answered the question itself, which is how Google can display images belonging to others without breaching the copyrights, not to take their own photos.
    – Nij
    Dec 31 '20 at 20:42
  • Well the question asks "how exactly do websites (e.g. Google,...) operate without infringing on 3rd party copyrights?" and goes on to "clarify" "I am less concerned with the author's copyright claims... and more with the 3rd party claims". My point is that these "3rd party claims" are not akin to copyrights at all. I have done the best I can to answer the question, which wrongly makes the assumption that there is a right akin to copyright, which belongs to landowners. Dec 31 '20 at 22:44
  • The statement "you do need permission to take certain photos of some real property in the UK" is not really correct, except in the case that the real property is itself a protected copyright work. The question is not about that scenario - e.g. Durdle Door is a natural formation and very obviously not a copyright work. The reason you need permission to take photographs ON the land is that the landowner has the right to say who can enter the land and for what purposes. You do not need the landowner's permission to take photos OF Durdle Door if you can do so without entering the landowner's land. Dec 31 '20 at 22:50

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