Case Study: A Community Portal for Photographers

With the Internet, new legal issues are constantly emerging not only from the technology itself, but from the novel ways users can communicate as well. Most of what is covered by the buzz word “Web 2.0” clearly indicates that users want to belong to a Web community where they can share mutual interests. Take for example some clients of ours, who have set up a community portal for photographers: anyone interested can publish their photos, evaluate other people’s pictures, and exchange news and views with fellow hobbyists. Ultimately though, the ever-growing number of photos and the time and effort that have been devoted to quality control and put into the technical infrastructure have effectively professionalized the platform.

With its growing popularity and its increasing business significance, it soon became apparent that attention needed paying to the legal aspects of the platform as well. That was when the operators approached us, requesting us to draw up terms of use that included licensing the content to interested users. Almost simultaneously, our clients received a cease-and-desist warning about an infringement of copyright, because one of the photos published on their platform depicted a building’s interior design. This prompted us to help our clients review the extent to which the photo community as a whole needed putting on a sound legal footing, and we ended up providing support in the following areas:

• For governing relations between the platform operators and the members of the photo community, general terms and conditions (T&C) had to be drawn up that laid down each party’s rights and obligations, whilst at the same time safeguarding the artistic standards of the platform. This meant taking into account the very special features of a community platform, whilst at the same time observing the strict framework for T&C that is laid down by law.
• A data protection policy was drawn up for the platform, furnishing all the information that is obligatory under the Teleservices Act and requesting each member for consent to process his or her personal data.
• The clients expressly requested us to design a licensing model, which enabled photos to be licensed directly to interested users without the platform operators  themselves having to assume the role of licensor, whilst at the same time allowing the clients to share financially in the turnover generated on the platform.
• Both our clients and the platform’s users had to be made aware of those areas calling for special attention if infringements of rights are to be avoided. For instance, taking pictures of people is only ever allowed if the person shown has given permission, failing which the photographer commits an infringement of that person’s fundamental personality rights. Frequently, photos of works that are protected by copyright may only be taken provided the owner of the copyright has actually given permission to do so – this is because in legal terms, the publication of the photo constitutes a form of use of the protected work being depicted. This applies to architecture photos and pictures of works from the visual arts in particular. Our task was not only to make sure that the platform operators acquired the necessary legal know-how, but also to find plain and simple wording for the instructions given to users, so that even at the early stage of uploading their attention would be drawn to areas where problems may arise.

But our services did not stop at writing the required texts or defending the platform operators when they were sued for infringement of copyright. Jurisdiction on the liability which operators of community portals, forums and blogs bear for any illegal content that third parties have published there is acquiring dramatic dimensions, meaning that any model already in use needs to be continuously monitored and adjusted promptly whenever necessary. Who is liable for infringements caused by other people? When is a platform operator deemed to have appropriated content that a user has placed on a community platform? To these questions in particular there are no consistent answers, making practical application of the law a problem in itself. In these difficult legal circumstances, the only way of attaining legal certainty in the long-term that will enable the photo platform to continue growing is to keep step with the latest jurisdiction.