Don’t get me wrong. My article title is not a call for action, but it is cautionary. It appears to be the season again for companies to be making use of other people’s copyright images to help promote their own goods and services. Perhaps this is indicative of organisations attempting to save costs where they can in the current climate? And whilst benefitting from an initial costs saving, they are tending to get caught out and end up paying more than they might have otherwise. This is generally because there is also a growing tendency for licence holders to maximise their own portfolio revenue streams, by aiming to ensure that use of their images is fully paid up!
What I’ve set out below is far more common than perhaps you realise. But this article’s step-by-step guide should assist in avoiding unnecessary distractions to your business day, and those additional costs when operating in a cost-saving environment.
“If it’s on the internet, it’s in the public domain, and therefore FREE!”. No it is not…
“It’s ok, this image is ‘free to use’”. Or it may not be, if the licence is conditional…
“Not our fault. This is down to [some other third party]!”. But you are held responsible…
“We didn’t know…”. Alas, not (ever) a defence…
“Don’t worry about it – who’s going to know?”. And yet the licence-holder might…
As a business owner you should ensure that the material your company uses, including images on your website are indeed licensed for your commercial use. Unless you intend to take a calculated risk and simply use another’s images, the chances are that when it happens it will be due to an employee error, or some third party provider, such as a web design company, that will be the ones helping you to receive an infringement letter and demand for payment.
Assuming you wish to avoid this agro, consider the following:
Whether these activities are undertaken by an employee or an external provider, do they understand copyright infringement, the consequences, and what steps they should be taking:
There are a host of defences that are available when faced with alleged infringement. However, before you exclaim innocence and raise your robust defence, have all the facts been disclosed and has the right to bring a claim been established at the outset by the aggrieved party? Under UK legal practice, there are rules to be followed when attempting to bring a claim/threatening a claim.
Knowing the difference between a Penalty Charge Notice and a Parking Charge Notice is important. One is an official charge notice. The other is issued by a private company, does not have statutory effect, and can often be legitimately challenged, but is nonetheless paid by UK drivers in something around 85% of cases, simply because people generally accept an official looking notice. Hence why you should exercise caution and be aware of potential scams. As you may already know there exists fake data protection re-registration notices (companies contacted by scammers who demand higher than the standard re-registration fees who do not re-register your company in any case) and fake trade mark registration services (https://www.gov.uk/government/news/warning-misleading-invoices-dont-be-fooled), who encourage you to pay registration fees to join a register that has no legal credibility.
Therefore carefully consider the content of a copyright infringement notice to ensure it is genuine and that the aggrieved party sets out the following minimum:
I) Clear details and supporting evidence that they are the owner of the image, or they are the authorised licensee that has the right to claim infringement.
You should be critical of what is being claimed here, but in any case the aggrieved party is the one obliged to prove it is the copyright owner/is the authorised licensee. There may also be more than one owner to consider. Such quality of proof can vary and this is where, unless you have experience or otherwise are confident in assessing such proof, you may need to instruct a lawyer to look at this for you. An initial cost to consider.
II) When was the image created? Are the rights in the image still valid? Depending on the nature of the work, and when it was first created, copyright will expire at different times.
III) Who created the image and in which country? International treaties exist that help protect against potential infringement in foreign territories. What you may perceive as a “foreign copyright” may still have rights in the UK. Again, you should satisfy yourself that the aggrieved party has set out these details and has the right to claim the infringement.
IV) Damages claimed, but only entitled to a fair licence fee. Beware of inflated claims! There is good UK case law in this area, and you should note that even if your company is ‘guilty’ of the infringement you only need to pay a fair licence fee for use. Do not be fooled into forking out large sums of cash in damages.
Training your staff and providing them with the correct tools is always the best first step. But keep it up and provide regular refresher courses. Whilst it is considered appropriate for employee contracts to contain an authorised deductions clause, my view is that this should be a last resort reserved for the most stubborn of repeat offenders. A company policy / process is helpful and neatly dovetails with the training provided. It is always helpful to have access to a go-to document. As for your third party suppliers, you should ensure that copyright issues are addressed in the contract. This does not absolve your company’s actions, even if this third party places infringing images on your website, whether at initial design stage or as part of an update/ongoing project (it is your website after all, and you are solely responsible for it). Nonetheless such suitable clauses will help you pass on most (and sometimes all) of those costs you may be inadvertently facing.