CAPTURING THE HEARTBEAT OF A CRISIS WITHOUT INFRINGEMENT

摘要

Cultural sharing norms, unfair licensing terms enforced by social media giants, and the immunity provided to embedders of visual content by the Server Test have created significant challenges for photographers and other visual artists in monetizing their works online. In order to protect the economic viability of their craft, professional photographers need stronger copyright rights. Traditional licensing regimes provide ways to compensate photographers, but the process is inefficient, and the culture of open sharing is often at conflict with licensing rights and the constitutional purpose of the Copyright Act. Furthermore, tracking and enforcing infringement on a global scale is a futile exercise. Given these factors and the various defenses available to defendants, the force of the display right in the internet age is dull at best. One way that courts can rebalance rights in favor of creators is to reverse the Server Test and hold that embedding photos without authorization constitutes infringement of the display right.