Copyright Puzzles behind "Subway Waterfall"

2011/10/20,By Anne Zhang, China IP,[Copyright]

Around 4 o'clock on the afternoon of June 23rd, the sky over Beijing darkened abruptly. Along with deafening thunder, a storm approached from the north and moved quickly towards the central districts of the city. The municipal meteorological observatory issued a high level warning (code blue), cautioning the public that the thunderstorm's watery clouds could reach the downtown area and cause a rainfall as much as 50 mm or more in some areas.
All these "unusual" changes were recorded online. From the overshadowed sky to the sudden downpour wrapped in howling wind, the storm was broadcast live by numerous micro-bloggers.
It made the capital's vulnerable drainage system an object of ridicule and spawned many an imaginative joke running wild on the web, on which blog users invited travelers to "come to Beijing to look at the sea" and advised them to "line up at subway stations to rent a life buoy".
"Subway Waterfall" Gained Fame Overnight
This unprecedented storm also testified to the capability of relaying news among web users. A handset picture showing a raging torrent gushing down a flight of stairs at Taoranting Station of Line 4 shocked many, and was re-Tweeted more than 2,000 times almost instantly. As next day's headlines ran with captions such as "traffic paralyzed across city", "cars submerged", "waterfalls appear at subways and buildings", this picture also found its way to numerous media.
"Everything happened so accidentally, and I did it before I realized anything. I just returned from the airport where I picked up a classmate, and when I emerged from the subway I was suddenly overwhelmed by this extraordinary scene. I had a feeling of witnessing a historical moment, so I took out my handset and shot the picture", Yang Di, author of the photo, told China IP.
Then, eager to share it, Yang transmitted it via QQ, an instant message tool popular in China, to a friend, hoping he could send it to a group of friends. Another friend in the group saw it and put it immediately in his own micro-blog, and never expected the flood of forwarded "re-Tweeting" that followed. The friend told Yang instantly and he knew the picture was hot on the web.
Favored by Mainstream Media
"The downpour caused massive congestions and I didn't get home until midnight. Then a friend told me a photo editor of China Daily sent me a private message to my micro-blog, asking my permission of copyright and the original picture", Yang recalled.
As a matter of fact, by that time many media organizations had made use of the picture without Yang's knowledge or consent. Most of them, including the state Xinhua News Agency, reprinted from the micro-blog of Yang's friend and removed the watermark on it.
At first he didn't expect the picture to go to press, Yang told China IP frankly, and he agreed gladly when asked for permission to use it and was promised a contribution fee. "At the beginning the idea of copyright didn't cross my mind, but later when I cooled down I felt the necessity of asking." Many reprints marked the source as Xinhua, so Yang first made a phono call to Xinhua on the morning of 24th, trying to defend his rights. He received a sincere apology and promise of payment from the agency. But by that time, his picture had been widely relayed, with most media having failed to give him credit. So the only thing Yang could do was to check and make calls one by one, an act he deemed extremely difficult. On the one hand, he didn't know for certain how many media organizations around the globe had used the picture; on the other hand, making calls one by one is very energy-consuming, and Yang would soon end his brief stay in Beijing and return to the U.S. to continue his study.
Copyright Headaches behind Explosive Growth of Network Dissemination
Yang was very puzzled. "Many friends advised me to go to court, saying this is an intellectual property issue and I should uphold my rights. But honestly, I'm not very inclined to that. I have no energy for the matter since I'm still studying in the U.S.. And I didn't shoot the picture for profit or sale, so now I have no intention of making a fuss over it either. But the sources which gave credit to others made me uncomfortable and I'm reluctant to give up my rights so easily. Now I face two questions: First, how to get back my rights already lost and my contribution fee; second, I'm talking with a copyright agent and I don't know whether this will work."
For Ge Xiaoying, senior partner of United Zhongwen Law Firm, the downpour was still fresh in his mind. "I was really impressed by the picture. It is of some historical value and the author's rights should be defended." When sending the picture through QQ to his friends, Ge said, Yang should have realized that it might go beyond his friend group. But as things happened all very suddenly it was very hard to think the consequences through, and it was already pretty late once he later became aware of his rights. When he transmitted the picture, Yang released his right to network dissemination of information, but this doesn't mean he has given up all rights, therefore others, when using and spreading the picture, still are required to ask the author's permission before using it.
Looking for a copyright registration firm is an act normally used to protect future rights, said Ge, that is, to entrust his rights to the agent. But other agencies are needed when seeking protection for rights that have already been lost.
As network dissemination moves fast, average people, with their mobile phones, cameras and DVs that record and spread news instantly, have rendered most traditional media inadequate in the battlefield of prompt reporting. Common residents have become the first ones to discover news and begun providing on- the-spot pictures to media. So cases like Yang's will inevitably become more common. "In this case, the China Daily editor acted quite appropriately. A media organization would only have its credibility hurt if it fails to respect others' rights, given that it is regularly in the business of handling a multitude of others' works.
In using a picture, necessary procedures must be followed and sources verified. According to Article 22 of our Copyright Law, only the reuse or citation of other's works for any unavoidable reason and for the purpose of reporting current events can be deemed appropriate use; otherwise liabilities must be affixed. As far as the right of the person is concerned, the right to sign must be guaranteed. Media are in a stronger position when compared with ordinary web users. They shoulder great social responsibilities and are more familiar with related regulations and laws, therefore media must maintain a firm grasp of information sources, related legal procedures and other issues when web users might not be well aware of them."
In a word, both web users as right holders and users of other's works should uphold their legitimate interests by rational and lawful means.

(Translated by Li Heng)

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