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Sharing Patterns without Permission.

 
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crocheter
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PostPosted: Fri Jul 25, 2014 3:39 pm    Post subject: Sharing Patterns without Permission. Reply with quote

Hi

I design and publish crochet patterns. I live in the UK but I sell worldwide.

In recent years there have been a number of pattern sharing sites that have formed, where members can upload patterns and earn some online form of currency for 'selling' them.

At last count, there were more than 20 of my own designs being traded on one particular site.

I'm of the understanding that, since they are based overseas, little can be done to shut the sites down. So, up until now, I have just dismissed it as 'something that happens'.

A few weeks ago I released my latest pattern and, as usual, within hours of its release it was uploaded to the pattern sharing site. What was different this time was that I hadn't had time to announce the release so sales had been quiet. So quiet that, at the time it was uploaded to the site, I'd only sold one copy - making it quite clear who the buyer and uploader was in this instance.

Digging deeper, I compared all the patterns that were uploaded to the site by this particular user with my sales records. In all but one case they had bought the pattern in question - the one exception is a pattern I have made freely available online so it wouldn't have been difficult to obtain.

My question is, in a case like this, do I have any rights? It may, or may not, be important but the buyer is not from the UK - they are based in Australia.

Thank you, in advance, for any input.
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AndyJ
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PostPosted: Fri Jul 25, 2014 8:23 pm    Post subject: Reply with quote

Hi crocheter,
Yes, you have rights even though the alleged infringer lives in Australia. Australian copyright law is quite similar to UK law. In theory you could pursue the matter through the UK courts but that would be largely pointless since the person is outside the jurisdiction. And in any case I doubt if resorting to the courts would be economically justified in this case. You need to decide what you want to do about the situation.
I imagine that the most important thing for you in the short term is to get the patterns removed from the sharing sites which you have not authorised. If these are hosted in the US, EU (including the UK) or Australia, you can use the relatively simple take down procedures operating in these countries to get the infringing copies removed. Many sites will have a page or link which allows you to report the fact that they are hosting infringing material. If not just contact them quoting the relevant legislation quoted below. The hosting services only enjoy immunity from liability as long as they have no actual knowledge that something on their site infringes copyright; once you have notified them they must act expeditiously to remove it. If the sites are based in the USA the appropriate system is found in the Digital Millennium Copyright Act; if they are based in the UK refer to Regulation 19 of the Electronic Communications (EC Directive) Regulations 2002 (SI 2002/2013) or if elsewhere in the EU, then it's EU Directive 2000/31 (specifically Article 15), and if the sharing site is based in Australia, then it's the Australian Copyright Act 1968 section 116AH (look at serial 5 in the table at the head of the section).
As for what you want to do about the person you suspect of sharing your patterns, there are a number of options. Since you obviously have an postal or email address for them, you could contact them with three different approaches:
The first is to assume that they do not understand that what they have done is wrong, and so you need to educate them in a firm but non-accusatory way that the patterns are supplied for their personal use only and may not be copied or put on sharing sites without your express permission.
The next level is to assume that they do know what they are doing is illegal, and administer an even firmer admonishment, with or without informing them that you won't be supplying them with any further patterns.
And the strongest option is to issue what is known as a letter before claim in which you inform them that you have grounds for suspecting that they have infringed your copyright by copying the patterns and that you are seeking compensation from them for the sales you have lost due to this. You need to decide a sensible figure for the amount of compensation. You can include a small additional amount to cover your costs (but if you send an email, these will be negligible) but you can't include a punitive element. You can conclude the letter by saying that if they do not reply, or do not accept your terms, you may be forced to resort to litigation. If the person agrees to pay this compensation (known as damages in legal jargon) all well and good, but if they refuse I think you have to be realistic and leave the matter there. The cost of going to court in Australia would be horrendously expensive and time consuming, and although you would probably win and get most of your costs back, you will undoubtedly be out of pocket overall.
I must stress that however you choose to respond to the person, be careful not to make accusations which you can't prove, because that could rebound on you. Don't forget there may be other explanations for how these patterns got to the sharing sites, which although the person you suspect may well have been the conduit, they may have played no actual part in the sharing. (Say they made up the garment in the pattern, then threw the pattern away and someone else found it on a refuse tip and published it - highly implausible, but a story of that sort could persuade a court that there was doubt about the customer's part in the infringement). To have a much more watertight case you would also need evidence from one of the sharing sites that the identity (perhaps an IP address) of the person who posted the patterns was the same as the customer you suspect. And even then that might only prove that the sharer lived at the same address as the customer. Getting this additional evidence would entail more expense and take time with no guarantee that such information could be obtained. And you would be relying on a lawyer in Australia to put together and fight the case on your behalf, since I assume you would not want the additional (unrecoverable) expense of flying out to Australia to attend the hearing.
And for the future, make sure that you not only put a copyright notice on your patterns, but you also include a short statement that the pattern is supplied on condition that it is solely for personal use by the purchaser, and may not be published or shared via internet sites without permission.
_________________
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007


Last edited by AndyJ on Sat Jul 26, 2014 10:10 am; edited 1 time in total
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crocheter
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PostPosted: Sat Jul 26, 2014 7:47 am    Post subject: Reply with quote

Thank you for such a speedy and thorough response.

I believe the sites are based in China. There are a number of very 'big' designers (with legal departments) who have tried and failed to get their things removed thus far. I believe they are still working on doing what they can so I'm happy to leave that in their hands Smile

My patterns are marked with my copyright information. I also have full terms and conditions which are outlined prior to payment - this was something I introduced to be ready for the recent changes in the EU regulations.

While I am confident that this person is responsible (I have since seem comments from them bragging about the 31.9 Gb of patterns they have to share), there is always the possibility that several users share/upload to a single account on these sites - that would certainly counter any 'proof' I may feel I have :/

I think, from your response, the first option is my best option - a polite (almost generic) message to remind the buyer that purchased patterns are for personal use suggesting that IF they have copies in locations that aren't permitted, they remove them.

I feel that a written letter, rather than an email, may have more impact so I will certainly look into this further.

I don't hold out much hope but, while a trip to Australia sounds like fun, it's not really a feasible option Wink

Thank you again for your response.
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AndyJ
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PostPosted: Sat Jul 26, 2014 9:09 am    Post subject: Reply with quote

Hi crocheter,
The hosting sites being located in China does make life considerably more difficult. But Chinese law does contain similar provisions to those I mentioned previously. The relevant part is called the 2006 "Information Network Transmission Right Protection Ordinance" (信息网络传播权保护条例) Here is a poor Google translate version of what the law says:
Quote:
Article XIV

Storage space for providing information or provide search, online services link service providers, right holders consider their services involved in works, performances, audio and video products, violating their right to network dissemination of information to be deleted or changed the management of their rights electronic information, you can submit a written notice to the service provider network requires a network service provider to remove the works, performances, audio and video products, or disconnect the works, performances, and links to audio and video products. Notice should include the following:

(A) Name (Name) human rights, contact information and address;

(B) required to remove or disconnect the link infringing works, performances, audio and video products, names and network addresses;

(C) constitute an infringement of the preliminary evidence.

Notice of the right holder shall be responsible for the authenticity.

Article XV

After the network service provider receives notice of the rights of man, it shall immediately remove the allegedly infringing works, performances, audio and video products, or disconnected from the allegedly infringing works, performances, audio and video products, and also will provide notice of the transfer works, performances, audio and video products for clients; service object network address is unknown, can not be transferred, the contents of the notice shall also announced on the information network.
Hopefully you can get the gist of what that is all about. Actually getting the hosting service to abide by the law may be more difficult. That said the Chinese authorities are cracking down on illegal activities in the IP sector and so you shouldn't give up hope on this front. Since the normal contact method seems to have failed, I suggest you contact the UK Intellectual Property Office for assistance. There is a phone number at the foot of the page linked to above. They have attaches in a number of British embassies abroad, including China who may be able to advise or assist.
_________________
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007


Last edited by AndyJ on Sat Jul 26, 2014 3:25 pm; edited 1 time in total
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crocheter
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PostPosted: Sat Jul 26, 2014 9:56 am    Post subject: Reply with quote

Thank you. That is very helpful. I will definitely look at this further.
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