The attempt by Microsoft and Nikon to abuse photographers' copyrights in the Iconic Britain competition has raised something of a storm (see 'Microsoft & Nikon encourage copyright theft').

Nikon is already making efforts to distance itself from the whole mess by claiming that it is merely supplying prizes and that the competition is really all Microsoft's doing (see this discussion on Flickr). Its general manager, Simon Coleman, has disappeared from the list of judges, too, with no explanation offered. Its response to one photographer includes the phrase: "we would like you to understand that we are not the promoter". This, of course, neatly sidesteps the uncomfortable fact that the reason it is supplying prizes is precisely to promote itself - a significant point, as we'll see in a moment.

Microsoft has already issued a somewhat inadequate and, frankly, rather pompous response to Pro-Imaging which says, in part:

All images that feature on www.iconicbritain.co.uk are images from the internet that are already in the public domain.

Wait, what? Surely there must be someone at Microsoft who understands the difference between 'from the internet' and 'public domain'. If I put an image on my website, that does not in any way imply that the image is now public domain and therefore available for use by just anyone. If I supply an image to a third party for use on their website (and many pro photographers' images that have popped up in live.com searches have been scraped from picture library sites), I give a license to that company and that company alone to use the image. Putting an image on the web is not the same as making it public domain. Several people have pointed out that Microsoft software is available for download on the Internet. So is its software now 'public domain'? No, I didn't think so.

It could be argued that Microsoft's live.com search engine is just indexing images on the web much as Google Images does, and that this is all that's going on at the Iconic Britain website. The competition is simply making use of the general search engine capabilities of live.com. (The whole competition seems to be a feeble attempt to cure web users of their Google habit and push the number of live.com users into double digits.) There is established case law involving Google which found that indexing thumbnail images and presenting these with links to the sites where the pictures were found constitutes 'fair use' of the images.

Microsoft has already whined that it is up to photographers to prevent this web scraping if they don't like it - and this can, indeed, be done by using a robots.txt file. You simply put the following in a robots.txt file in the root directory of your website:

# prevent Google Images from indexing images
User-agent: Googlebot-Image
Disallow: /

# prevent images.live.com (MSN) from indexing images
User-agent: MSNBot-Media
Disallow: /

There are some issues with this, however. First, it doesn't always work. Microsoft's bots are notorious for not behaving properly in this way. I've found numerous comments on the web that, try as they might, webmasters have been unable to stop MSNbot from indexing their pages, often with unnecessary frequency that wastes bandwidth. It's almost certainly not that Microsoft is up to anything underhand - just that its software is predictably flaky and fails to comply with industry standards. Plus ça change...

Second, Microsoft fails on the fair use defence - at least on the Iconic Britain site. I'm told that the page contains scripts that should provide links from the thumbnails to the original sites. Alas, this didn't work with any browser I tried. I know of only one other person who has got these links to work. Again, Microsoft's lousy software is to blame. It seems they can't even write a simple script without it being buggy. These links are critical to the fair use defence. As Microsoft's software fails to provide these links, in functional terms it has failed to comply with the requirements for fair use.

And in any case, the fair use provision is null and void. Why? Because the Iconic Britain website is not a search engine. It is not simply providing thumbnail links as the result of a search. It is presenting the images found as part of a commercial promotion - in other words it is using the images to promote Microsoft and Nikon. Visitors to the site are encouraged to select and rate images as part of the competition process. The images are being exploited in the context of the Iconic Britain website, the competition and the promotion of the participating companies. This is clearly commercial use of the images for which all photographers involved are entitled to claim compensation. I'm thinking something of the order of £500 per image (given that the use was unauthorised).

Why not check to see if your images are there? And get your invoice in quick. Something tells me Microsoft's accounts department is about to be overwhelmed.

If you want to complain about use of your images in this way - or send a bill - here are some contacts:

The main contact address for the competition is: msncompetitions@thin-martian.com

Microsoft's contact for claims of copyright infringement is: jkweston@microsoft.com 

If you don't feel like letting Nikon off the hook just yet, email: simon.coleman@nikon.co.uk

As I mentioned in my previous post, I contacted these people about the abuse of my images. This is the reply I received from J K Weston:

At Microsoft we take copyright very seriously and endeavour to provide all users of our products with guidance on respecting copyright. However you have informed us that you object to certain of your images being submitted by users and displayed through the competition mechanism and that you do not wish these images to be included in the competition.  We appreciate the fact that you have informed us of this situation and want you to be reassured that we will take steps to ensure that each image you have reported to us will not be used again within the competition.

The initial stage of the Iconic Britain competition, in which users submit entries, closes at 1pm on Thursday 31st July, after which we will be compiling all submissions ready for voting prior to the Final 100 reveal on Thursday 14th August. Naturally, we will exclude those images you have notified to us from this voting. Microsoft will obtain the consent of the copyright owner in relation to all images that will be featured on www.iconicbritain.co.uk during the Voting and Reveal stages of the competition.

Note that they have agreed that my images won't be used in the competition (which is just as well - not a single one was taken in Britain). However, what I requested was that my images be removed from Microsoft's servers. Not a word about that. But let's give them the benefit of the doubt and assume that Microsoft is as bad at writing letters as it is at writing software.

UPDATE: I've been pointed to this Microsoft web page where the software dinosaur helpfully points out:

Isn't it in the public domain?

Just because a work is freely available, does not mean it is in the “public domain.” Copyright is for a limited term; it does not last forever. In the copyright context, “public domain” means the copyright term has expired. Once a work is in the public domain, it may be freely used without permission from the copyright owner.

Determining the term of copyright can be complex, particularly because copyright laws vary from country to country. Also, even if the copyright on a work has expired, you should be careful about how you use a public domain work.

So someone at Microsoft does indeed understand the difference. It's a shame that the competition designers, and J K Weston, don't read their own corporation's website. 

UPDATE: Microsoft humbled and Nikon pulls out - see 'Iconic Britain: Microsoft and Nikon admit faults'.