With the transmission speed of current Internet network, photography and visual arts in general are candidates for idaux be vhiculs around the world. Each person who posse its own page on the Internet cre somehow his own medium of mass communication. The full potential of this type of communication is not yet completely drawn, but the fact remains that the photographer must do even more careful to respect the right of people whose traits are reproduced and diffuss . The development of so-called right image is different stadiums around the world.
In some countries like Britain, the right privacy and the right image does not exist [22]. Some abuse can be rprims using the traditional categories of the common law, but it is sometimes difficult to meet the criteria of such action [23]. It may also be based on codes and forums autorglementaires some media [24]. In France and the United States, doctrine and jurisprudence of the tapes came particulirement advances development of the right image. The French courts, under the name of the right image, recognize any person a right to prohibit any unauthorized dissemination of its traits. The courts amricains will reconnatre this right to public personalities using the concept of “right of publicity” and for people who have no notorit public using the concept <<right of privacy “. The “right of publicity” is the right of a public personality [25] contrler commercial exploitation of its traits, while the “right of privacy>> rfre the plutt right of a person to remain anonymous. Initially, there were dfini the “right of publicity>> as both one of the four components of the” right of privacy>> [26] but it is increasingly considrer he s is a right of ownership autonomous same way as a copyright [27]. An author lie historically volution this legal development of a march to the image of personalities known to the public to promote products or services [28].
When the image of a person is subject manipulation by computer or otherwise, it is possible that a simple permission to use his image is insufficient. This is a t dcid the United States, in the context of “right of publicity>> even if the person photography for advertising does not s’tait r Serve the right to approve its image before its release [29]. A person possde also the same right in France to oppose the dnaturation its image [30].
The right qubcois follows plutt French law in its development. The law is unfortunately scarce and it often go check the state of French law to bring more nuances. The right image is dfini in the Civil Code of Quebec as both a component of the right to respect for privacy. It is prvu that capture or use the image or voice of a person when it is in places privs is a violation of the right of privacy [31]. Moreover, using the name, image, likeness or voice of a person any purpose other than public information lgitime is also a violation of his privacy [32] .
It can therefore conceive that Qubec, as the United States or France, the right image is a very important aspect of the practice of photography. Is it provided necessary to obtain the consent of the people appearing on photographs in all circumstances? We will see that there are certain limits inhrentes the law. Note first that to get a conviction against a photographer who appropriates the image of a person without his consent must be the traits that person can be identified [33].
The application without reserve the right image could curb the flow of images in the media. He dvelopp the United States a defence based on freedom of expression laid down in the constitution amricaine. In Quebec, such a limit is expressly laid down in the definition of the right image, the image of a person can be freely employee for information l Gitime public. It is generally accepted that the dissemination of new law supersedes the image of people involved in this news release. The courts hsitent before questioning the fact that a vnement in particular is a new gnrateur ( “newsworthy”) [34]. For a vnement is gnrateur a new, it must touch the interests public or he has a social value. It is very videmment of criteria that leave a wide margin of manoeuvre gnreuse the traditional media. Internet allows individuals or small groups of people, less organiss that traditional media to disseminate information and photographs relatively large audiences. It appears possible that the courts have a less gnreuse the context of these new media. Indeed, it has traditionally placed the power to decide what is new in the hands of a small group of people. A dmocratisation this process dcisionnel will be distributing a greater ventail images which may tender all except the right image. If the courts dsirent set limits except in this new environment they will face major difficulties analysis as they will have to articulate a test much more prcis. It is prvoir that courts qubcois will also ask these questions given the exception to the right image that “information lgitime public>>.
The photographers who produce artistic images not intended media feed will be more difficult to assert their freedom of expression if they did not take the trouble to get the consent of their mod them. In the United States, the very least, it considers that artistic expression has less weight compared to the right of a person on his image [35]. Indeed, artistic expression usually less key issues of public intrt it is related to feelings, vcu or the perceptions of the artist.
Similar issues arise in France and Quebec but not identical terms. They generally oppose the right image the public’s right information. Judges must get a balance between these two rights in various situations. It distinguishes the situation of public personalities of other people. The public personalities have a right image which is less under the excution of their duties or participation in public events [36]. The existence of such a limit does not mean that it is permissible to use a photograph of a public personality made at such a vnement to promote a product or service. The right image of the private individual can cder to the right of the public information (or freedom of expression of the photographer) when in a public place or when it is in impliqu vnement one of actualit. The Court considers franaise, however, that find themselves in a public place does not address all the rights the photographer. Only when the person is an accessory to place pictures that consent is not necessary. If the person is the main subject of photography, said in a public place, it may oppose the use of photography [37].
In all countries it is possible to make use of his image; videmment in some countries like Britain o protection of the right image is smaller, the need for consent is less pressing. Such consent may be in terms exprs, for example by signing an authorization form, or implied, by making reference to the context of taking the photograph. The implied consent can sometimes play for the photographer, but the courts have tended to restrict plutt the door where it exists. Merely agreeing to put before a camra will not necessarily the photographer the right to publish or disseminate photography and even less to use photography to promote a product or service [38]. If the photographer is a professional, is displaying his photographs public view can certainly be regarded as use advertising. The Internet is a fairly effective means for disseminating a photograph and her door world makes us believe even more that a person who agrees to pose for a photographer should not be rpute consenting the release of its image on the Internet. Videmment, if the context of the shooting is such that the person knew that was broadcast via the Internet consider it might be possible to allguer that there was implied consent. When authorisation criteria is a sign by the modle, it will also prfrable the rdiger carefully to prvoir uses spcifiquement envisags. Indeed, the courts are interprter any imprcision ports in the door of a consent against the photographer [39].
The photographer who broadcasts without permission or excuse lgale traits of a person over the Internet could face significant damage if the site is the subject of visits frquentes. Records of access to the site would be a good proof. Indeed, the damage when publishing unauthorized traits of a person are often based on the number of copies produced, or as regards Internet on the number of people who may have had access photography [ 40]. This valuation can become difficult when the photographs are diffuss in USENET newsgroups, which are funds on the exchange of messages between local servers. The photograph will tour the world from a server another, but it will be difficult to determine the number prcis of users who actually accd.
The use of the Internet to disseminate a photograph we amne as copyright, we question the international dimension of the right image. There is no global consensus on the door desirable from the right image and the differences are even more important that copyright. The situation is even more difficult rsoudre that has not yet tranch what is the exact nature of the right image. It is sometimes classifies as a right of the personalities and sometimes as a right of ownership [41]. In the perspective of international law these two categories of rights are not the same treatment. The right of personality should be rgi by the law of domicile of the person [42]. For example, the right image of an English tourist whose picture is taken in Old Quebec and subsquemment employee in an advert should be dfini according to English law, instead of his home. If this same advert is made available on the Internet the result would be the same. If it is a property right, it could be argued, like the international copyright, that the law on its image of a country varies, depending on the requirements of each national law [43]. The English tourist could invoke the right image as the dfini Qubec since it is the place o t photograph taken and diffuse. If advertising is made available via the Internet from a server situ Toronto, for example, the Corsican situation a little more. You may think apply the law of Ontario since the server is located but there might also be thinking in English law because the image is available in this country or the right qubcois because t photography are initially taken and the image is available via the Internet.
It may also complicate the situation by pointing out that often the right image is claimed as part of an action for civil liability which is subject to other rules of private international law. Indeed, the obligation to repair the prejudice caused others is rgi by law in the country o the fact gnrateur of prejudice occurred. If prejudice is published in another state, the law of this State shall apply if the fault was prvoir that it would demonstrate prejudice [44]. For Internet, the fact gnrateur of prejudice would make it accessible image by intermdiaire a server. This would be the law of the land is located o the server that dterminerait the conditions under which a person can invoke his right image. The right of all countries branchs on the Internet would also apply vocation as it is known qu’afficher an image on such a server allows people anywhere in the world to see. The prejudice suffered by the person appearing in the photograph is to have exhibitions t regards the public display and this was accomplished in a variety of countries.
On conoit very well that the Internet will require the courts take into account international aspects which have to be vits until present. To better protect the photographer who dsire use his photographs on the Internet, particulirement case of photographs taken in other countries, has intrt keep his cabinet in the consents from people who appear and prvoir expressly uses envisages.
IV. The sale of photographs via the Internet
One aspect intressants Internet, particulirement with the coming of World Wide Web, is to allow the sale of his photographs distance. The photographs are used in the operation of numerous publications, both in paper-based form. It is possible to create attractive lectroniques catalogues, which may be similar or not their quivalents on paper, and research tools that facilitate the task of the designer. Currently it is technically possible to make payments lectroniques or send information of monetary financial manire confidential on the Internet. A risk that must be gr is the risk of non-reproduction control images lectroniques. It is wrong to believe that such a risk does not exist today. Those who operate image banks are generally circulate catalogues containing reproductions of works included their rpertoire. Refinements technological scanners or scanners, are to ensure that illegal reproductions could be made from images of the catalogue. They will not reproductions rsolution high, but it n’empche not that acts of piracy are possible. Sometimes, however, that images with characteristics are well prcises research and ds that the use of the catalogue is not strictly necessary, vitant and the possibility of piracy.
On the Internet, one might consider the show a catalogue with reproductions rsolution low, allowing users to see the guts of the image to decide if it should, while limiting the possibilities of exploiting paper [45]. For more security, it would be possible to require that the user subscribes bank gives (with minimal or no cost) before they can view the images. This would connatre the identity of persons who use the catalog in case of dispute. Moreover, sign the framework contract during the subscription could prvoir the modalities of transactions lectroniques including treatment automatis of all or part orders. For bnficier the door global Internet it would probably prfrable to conclude this contract framework through lectronique plutt than on paper. But let photographers who intend to sell their works over the Internet take good care to meet the requirements of the law in relation to contracts lectroniques. The validity of the contract between the photographer, or his agency, and the user revt great importance since the user obtains possession of a copy of the photograph numrise high rsolution which may be reproduced endlessly without losing its quality. We must therefore ensure that the restrictions bring its use laid down by contract to be valid and can be invoked before the courts if necessary.
These are rules of evidence which could prevent a photographer to invoke restrictions laid down in the contract. Most legal systems have traditionally been regarded as the crit was the form of evidence of contracts that should be privilgie. It is quite empty as it poses problems srieux the people who dsirent make commercial transactions over the Internet. As it is a universe entirely lectronique no crit is produced during the transactions. These are messages in the form of computerising to be changes between the photographer and its customers to create the framework contract and then to get the right to reproduce photographs. Given the risk of modification, courts in several countries are undertaking a review of the reliability informatiss documents submitted to them before they are admitted. The reliability of this document informatis scans will once again appear in court to determine what weight it will have to be agreement. If the documents informatiss which represent the contract can not be produced before the judge, it will be impossible to prove the contract or there must be evidence using other means, like a t story. If the subscription photographs of the bank made a t manire automates, no human being will be available to make tmoignage. In addition to protection by a framework contract, several companies dveloppent of manires of dissminer products protgs by copyright by charging the user according to the use they make [46 ]. Some of these solutions are lies technology of CD-ROM (CD-MAX, Infosafe), others are not but ncessite the purchase of equipment especially by the user (Spyrus, Wave Systems Corporation), while a third category ncessite not buy any equipment from the patient (Electronic Publishing Resources). These solutions could enable the photographer or agency dlguer a collective management organization collecting payments.
In Quebec, for a document informatis reproducing the content of a contract can be the judge this, it must be intelligible and that sufficient safeguards prsente continues so that can be relied upon [47]. It is usually the tmoignage of the person responsible for the computer system which will provide such evidence [48]. To facilitate this proof of reliability, the law prvoit of prsomptions in two situations.
Safeguards are sufficient reliability prsumes exist when the registration data is made systmatiquement and without gaps and that there is a protection against the altrations [49]. To facilitate proof of its transactions manire this would require the photographer or agency s’astreigne discipline to make the archiving of messages manire systmatique. The very least, it should be done for all communications that give rise subscription. Some means must also be taken to implement a protection against the altrations. One might think that gard archiving on an optical disc type WORM (Write Once Read Many “).
O The second situation there is a presumption of reliability is when the person claiming the document operates a business. The person who operates an agency can certainly be seen as running a business, and it is irrelevant in this context that the person is an association, society or person of a single person. The photographer can be regarded as operating a company if its activities are sufficiently followed to form an economic activity organizes [50]. If it sells several works and carrying out its activities on a basis in any rgulire, it would give him the characterization of business and make bnficier diet of more favourable .
It is in these two cases that prsomptions: it may be reversing a proof to the contrary by the other party. If the other party arrives demonstrate that registers n’taient not protgs against the altrations, for example, and by this means russi raise enough doubts that they can t modifis, given the circumstances, it may oppose succs with their production. It will take the photographer or agency explores the administrative procedures and technical means which could be most likely to protect the contents of documents informatiss according to its budget.
The lectroniques communications over the Internet can pose certain difficulties regarding the identification of the buyer. Indeed, your counterparty might try to claim that he never sent the message that has trained a contract or that the content of his message a t changes en route. One solution this type of problem, which is considering several locations around the world is to use signatures lectroniques. A signature lectronique gnre may be using cryptography asymtrique. Cryptography asymtrique used to encrypt a message using a code so that there can be dchiffr by another code. The content of one of these codes is secrte custody (this is when the cl private) and the other is diffuse auprs the public (the public cl). As each cl deprives a person is clean, it is possible to verify that the message comes from many dchiffrant it to the public with his cl. If the message is intelligible and in line after this transaction, it is certain that a t chiffr using the cl private. To obtain the certainty complte the identity of that person on plans to create the certification authorities provide evidence that a cl public gives him. These authorities, which generally opreront under a government permit, will not certify a cl on public show of pices of valid identity. This certification system is not yet trsdvelopp. It is however dveloppement follow in the coming months and years. It will be an excellent way to verify the identity of a person on a vast Internet network.
Due to the door of international Internet we must ask ourselves whether it is sufficient to take into account that the rules qubcoises. From the fawn gnrale rponse east ngative. It is possible, particulirement especially if a dispute is submitted tranger a court that rules of evidence computerized another country apply. These requirements may be more or less svres and there is no uniform rule in this context. For greater security will require that the sales contract prvoie that the right qubcois is applicable and that only a court can hear qubcois disputes between the parties. The rules of the Civil Code prvoient indeed that the right prvu by the parties rglera evidentiary issues [51]. If a right tranger applies to the contract and that the port dispute is before a court qubcois, the parties can still use the rules of evidence qubcoise if they are more favourable to documents informatis S [52].
V. Conclusion
We first three questions which must be considres before embarking on the Internet. It is a means of communication particularities intressant for photographer since the image crosses aisment the barrires language and can find a russir march. By taking some legal cautions it is possible to operate with as much security of photographic works that in the current physical context.