It sounds simple enough. A photographer presses the shutter and takes a picture. The law has it that copyright is created at that moment.
Depending on whether the photographer is an employee or freelance, he or she wholly or partly owns the copyright that will determine how, by whom, and when that image is used.
The right to be able to “copy” that picture, to publish it in a newspaper or magazine or online, indeed anywhere, is enshrined in an ancient act known as the Statute of Anne which gained Royal Assent on April 5, 1710, more than 18 years before Captain Cook was born.
The Statue of Anne established primitive laws around the copyright ownership of literary works such as books and newspapers, but it underpins the development of copyright laws that have since flourished across Australia and the rest of the western world.
In turn these laws prevail over technologies – broadcast, internet, mobile telephony – technology not imagined when most of us took our final science lesson.
Nonetheless, copyright is widely understood – even at quite abstract levels with products such as seeds and medicines.
To supplement these precepts, advanced nations also have introduced laws that outline “fair use” provisions to accommodate the news value of events such as football games and music concerts to allow non-exclusive distribution of information, photographs and vision for news purposes.
But tell that to the world’s sports bodies and concert organisers.
Increasingly they are insisting they and their broadcast partners own outright every aspect of their concert or sports contest.
This flies in the face of the fair use provisions that exist in countries such as Australia and New Zealand.
Not only that, it is increasingly common that, without notice, and on the day of the event, organisers will accredit only news staff agreeing to sign a contract that insists the artist or their management own copyright to every picture or video shot at “their venue” – although such venues, like the MCG and Stadium Australia, are often publicly owned.
The issue came to a head again recently when Australian Associated Press joined News Corp Australia and Australian-based Fairfax Media in declining such agreements to secure accreditation for their journalists and photographers for the Rugby World Cup in England, beginning this month.
Organisers have insisted coverage must be geo-blocked and made unavailable after 48 hours. In addition, no more than three minutes of match content would be allowed to appear in any program or bulletin, which itself could not appear more than three times a day, separated by at least three hours.
Mark Hollands, the chief executive of The Newspaper Works, said the trouble was that sports bodies were selling allegedly “exclusive” broadcast rights to their events – deals on which they could not deliver in territories where there were fair use exceptions that allow Australasian media companies, for instance, to show video grabs on news websites.
However, the sports bodies have been going even further by trying to limit video outside venues – interviews with players, for instance – and restricting players and officials from blogging to prevent any leakage of information the organisers cannot control.
AAP editor-in-chief Tony Gillies regrets that he cannot send his crew to cover the Rugby World Cup, but “the world governing body of rugby is asking us to live with restrictions that have us abandon what we find acceptable under Australian law”.
“There is this fundamental issue that the accreditation terms (are) seeking to have an influence on how we publish content, and that’s something we struggle with.
Mr Gillies said he was not confident things will be ironed out before the following Rugby World Cup in Japan in 2019.
“We had a similar scenario back in 2011, so it doesn’t appear as if they’ve learnt too much in that time,” he said.
“It is absolutely regrettable. It’s horrible. We’d much prefer to be in the venues (and) official team functions, but, unfortunately, we can’t be.”
Mr Gillies said that, traditionally, Olympics organisers were most difficult to deal with, but plans to cover next year’s Games in Rio de Janeiro were advancing seamlessly.
“We seem to have struck a balance (with the Olympics) that we can all live with,” he said.
Mr Gillies believes the challenge for the sporting bodies was to understand that the media had fragmented “so that video was now part of the play for print publishers where they never had to contemplate that sort of thing”.
“There are a whole set of new challenges that both sides are grappling with,” he added, but “we’ll provide coverage one way or another.”
Mr Gillies said AAP was “highly experienced” in dealing with accreditation – and negotiated 100 such accreditations each year.
“There was a Senate inquiry in to sports media accreditation in 2008,” he said.
“That came as a result of AAP being denied access to AFL venues for images for a couple of years. We got back in.”
These days the media companies and Australia’s sports administrators have a code they stick to which is working well. “Everyone seems to get it now,” said Mr Gillies.
However, there is no such agreement with some major international sports administrations.
Rugby, outside of Australia and New Zealand, is a no-man’s land in terms of restrictions on coverage – and a cloud remains over some cricket, depending on where it is played. In 2013, the BCCI – the Indian cricket board of control – denied access to photo agencies for a one-day series on the subcontinent and wanted to on-sell its own images to publishers.
News Corp Australia editorial director Campbell Reid described the actions of the BCCI at the time as a direct attack on impartial, independent coverage of a sporting event.
In protest, Australian newspapers and some UK publications carried no images or video from the series.
Entertainers also are negotiating just as hard as the international sporting bodies.
“The onerous conditions that are imposed (upon our staff) by the entertainers are just unrealistic,” Tony Gillies said. “Quite often we just walk away from it. You know you just can’t deal with it.”
Some big names in music – U2, Madonna, and even 88-year-old Tony Bennett – are relaxed about photographers at their shows, but increasingly other acts, including Lady Gaga, Taylor Swift and the Foo Fighters, are asking photographers to sign over their copyright on images from their shows.
It has long been common for photographers to be allowed to take pictures only during a single song.
A spokeswoman for News Corp Australia said it had become the practice of concert promoters to send copies of the agreements they wanted News staff to sign “the day of, or a few hours before, the performance occurs”.
The terms and conditions could be “quite onerous” and difficult to negotiate in the tight time frame.
Paul Murphy, the chief of the Media, Entertainment & Arts Alliance, said the increasing restrictions, particularly on photographers, are deeply concerning.
“It is spreading like a virus . . . the rights of photographers and journalists are just being trampled on,” he said.
That the major publishers have been unable to negotiate a deal with the likes of the Rugby World Cup organisers “is a loss for all of us as readers and consumers of journalism”.
While the big publishers had some bargaining power, freelance operators were being frozen out. “The loss of ongoing copyright is a major blow to a freelancer’s income.”
“The contracts should respect the balance of the law, and the law is clear – freelancers own the copyright in their image.”
He said that sports organisers and concert promoters always have the option to purchase images if they wished to use them.
“We are all the losers. We potentially lose out on important coverage and it can be a significant issue in terms of press freedom and freedom of expression.”
The restrictions are “quite offensive”.