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Incorrectly claiming copyright

 
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Copeequeree
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PostPosted: Sat Apr 11, 2015 9:56 pm    Post subject: Incorrectly claiming copyright Reply with quote

I am confused how websites who scan newspapers can claim copyright.

The scanning companies can not have done any due diligence on establishing who own the copyright in the articles and photos in each issue.

Similarly the photo libraries. I queried why one photo was noted as copyright ed by them and asked them to provide details of their claim. They replied they couldn't!

Surely claiming copyright over something which you don't have is breaking the law?
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AndyJ
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PostPosted: Sun Apr 12, 2015 8:55 am    Post subject: Reply with quote

Hi copee,

You have highlighted a weakness in the law. There is nothing to stop anyone falsely claiming copyright in something they don't actually have any rights in. I suppose that technically they would be committing a fraud or misrepresentation if someone bought goods or services on the strength of the copyright statement*, but I can't recall a case where this has been argued.

As you say, if someone has copied something without adding anything creative of their own in the process, there cannot be a new copyright in the second work. However many august bodies such as museums do claim exactly that (eg this example from the British Museum) when they digitize the works in their collections for instance. There is one special case where such behaviour is understandable. That is where a previously unpublished work is first published after any copyright in the original has expired, when something called 'publication right' comes into effect. This gives the publisher a 25 year right, similar to copyright, to authorise all the activities such as copyirng, making available to the public or making adaptations etc which are normally associated with copyright ownership. Since the is no special symbol for this somewhat esoteric right, the © symbol is often employed by way of shorthand.

Scanning something like a newspaper (other than a very old one) without permission is likely to lead to an infringement claim by the Newspaper Licensing Agency which represents the majority of the newspaper industry in such matters. Even if the scanning is done with permission, the only copyright which would exist is the original one in the paper itself, and that would remain with the publishers.

Photo libraries are slightly different in that they will have entered into a contract with their contributing photographers to market the photographs. Conventionally the photographs are often then marked as something like '© GettyImages' in order to draw attention to two separate facts, namely that the image is copyright, and that Getty is the agency which deals in the work. In some cases where Getty has commissioned the photographs, the contract may well assign copyright to Getty and so they are the legal owners of the copyright. However in the majority of where the work has been submitted speculatively without an assignment, and the photographer has asserted his/her right to be credited as the author, then theirs is the name which should appear alongside when the photograph is published. Just a quick glance at the newspapers and magazines which use stock photography would show this rarely happens and the agency is much more likely to be quoted as the source. In such circumstances, the © symbol should not be used because it is misleading. Unfortunately it is not unlawful so it continues to happen.

Unfortunately under the Copyright Designs and Patents Act only a copyright owner or an exclusive licensee may bring a claim for infringement as a way of challenging another's false claim. Clearly this can't be used where the underlying work itself is out of copyright (since there is no longer a copyright to own or license). This means that there is no easy way for a third party to challenge some of the more egregious claims to copyright other than by undertaking an act which would, if the copyright was legitimate, amount to infringement, and then waiting to be sued in order to argue the case before a court. This is in contrast to both trade mark and patent law, where an alleged false or invalid claim can be challenged by anyone who has the resources to commence the necessary action.

*The problem with going down the misrepresentation route is that it does not involve the criminal law and so only someone who has suffered materially (say in financial terms) is likely to commmence an action. So if there is no financial loss involved, while there may by judgment in favour of the claimant, there is no real penalty for the defendant, (ie the person making the false claim) and so there is little deterrent other than possibly some bad publicity.
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tackler7
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PostPosted: Tue Apr 14, 2015 8:20 pm    Post subject: Reply with quote

An interesting subject. I once asked one of the big photo libraries about a claim to copyright on a photo. This was their response.

Quote:
In general copyright lasts for 70 years from the end of the year of the death of the author. So if the photographer died any time after 1941 the image is still in copyright. In this case we do not know the photographer but given it is shot pre 1900 is probably out of copyright and probably available from other sources.

However if you source and license the image from our site you still need to pay the relevant usage fees irrespective of copyright status. This covers our costs in preserving the original and digitizing, captioning and making it available to our clients.


I had already bought a copy from the internet so didn't take them up on their offer!

If I used it in a publication without credit to the Photo Library and they later chased me for breach of copyright, and I didn't bow down to their known pressure letters, it would have been interesting to see what evidence they produced in court to substantiate their claim.

My general theory is that the older the photo, the less evidence they are likely to have to substantiate they hold the copyright. [/quote]
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AndyJ
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PostPosted: Tue Apr 14, 2015 9:26 pm    Post subject: Reply with quote

Hi tackler,
Thanks for that bit of information. The quote you supplied exemplifies the point that there is little to deter anyone from claiming copyright in something where they don't in fact have any rights, and when challenged, they can make up any excuse, such as in this instance, the need to cover administrative costs.

However I would be less dogmatic than you about your final point that "the older the photo, the less evidence they are likely to have to substantiate they hold the copyright". Reputable photo libraries (as they were then called) which held real photographs from the pre-digital age maintained meticulous records about each image and this would include details of the photographer (so making it easier to identify when the photographer had died) and the copyright details and licensing arrangements. Today the stock agencies hold vastly more images and often will never have had personal dealings with their contributing photographers, which together with the enormous opportunities for anyone to plunder the internet, increases the possibility of fraudulent claims to copyright by those who submit the stock. Thus I suggest that the problem of false claims for which the agencies hold insubstantial evidence of copyright is probably greater since the advent of digital photography.

Of course there is an immense amount of older 'orphan' photography held by museums, archives and ordinary libraries for which it would be exceedingly hard to find evidence to support a copyright claim, especially once the images have been digitized. Here, one is forced to rely on the integrity of the archivists and librarians not to make false claims based on the assumption that a new copyright has been created at the digitization stage. Regrettably the financial pressures on such institutions can mean that commercial interests will outweigh academic and legal rigour.
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Nick Cooper
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PostPosted: Wed Apr 15, 2015 3:56 pm    Post subject: Reply with quote

It is interesting that the reply quoted by tackler7 uses the example of a 1941 image, which would have been covered by the 1911 Act, and thus fallen into the public domain at the end of 1991. As I have said previously, I doubt any photo library would want to open that particular can of worms in court, regardless of whether or not they can actually produce reliable documentary evidence of the identity of the photographer.
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Copeequeree
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PostPosted: Wed Apr 15, 2015 9:06 pm    Post subject: Reply with quote

Thank you for a comprehensive answer and interesting follow ups.

How many small copyright breaches do you estimate make it to a UK court a year? I'm not talking large abuse but one off uses in small newsletter or web logs.

If Nick is right they won't pursue in most cases?
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AndyJ
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PostPosted: Thu Apr 16, 2015 8:12 am    Post subject: Reply with quote

Hi Copee,
If by 'small copyright breaches' you mean cases where the value of the claim is below £10,000, then virtually all such cases will be dealt with by the Small Claims Track* of the Intellectual Property Enterprise Court, itself a part of the High Court. However since neither the court listings nor judgments of this court are published, it is hard to put a figure on the annual number of cases. Furthermore, despite assurances from the Department of Justice that they would publish statistics about the court's caseload, these have yet to materialise. However I think it is fair to say that the numbers of cases heard by the court are likely to be in the high tens rather than the hundreds. Since we have no statistics or written judgments to draw on, it is not possible to say how many claims of this type are successful.

Jane Lambert who is a practising barrister (text amended - see posting below) is on record as saying that around 50% of claims filed with the court are settled before being heard by a judge. When this figure is added to those which are never filed with the court in the first place and are resolved by settlements negotiated between the parties (with or without the involvement of solicitors) or through Alternative Dispute Resolution (ADR), it is clear that the majority of cases do not go to trial. As far as ordinary settlements and those which involve ADR are concerned, yet again no figures are publicly available, despite the latter often being provided under the auspices of the IPO and the Courts and Tribunals Service. And of course some claims will be abandoned at a very early stage. We have no confirmed figures for any of these outcomes, and any estimates which exist tend to be based on anecdotal evidence.

In contrast we can see very detailed figures (pdf) for all manner of activities concerning patents, trade marks and registered designs, albeit not that up to date.

As for your question on the likelihood of a picture agency taking action over infringement, this will vary between the companies based on their individual policies and the depth of their pockets. Getty, for instance, is well-resourced and has a reputation for aggressively pursuing those it feels have infringed their rights. However I suspect few of their cases are litigated in court because, when faced with the heavy weight legal teams employed by Getty, many individuals will agree to settle rather than face the expense and hassle of fighting. We can have no way of knowing how often this occurs. A company which fails to protect its IP invites further infringement.

*The small claims track also deals with claims for other forms of IP, including trade marks (UK and Community), passing off and registered and unregistered design rights (UK and Community). Copyright accounts for around 85% of the cases handled by the Small Claims Track, and of these, the majority appear to be concerned with photographs.
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Last edited by AndyJ on Sat Apr 25, 2015 6:30 pm; edited 1 time in total
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tackler7
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PostPosted: Fri Apr 17, 2015 5:44 pm    Post subject: Reply with quote

I've just been reading the Morel case and in my mind it re-enforces the idea that certain Photo Libraries will seek to claim ownership when none is due and use their weight to press others into agreeing with them.

I've struggled to find a case (through internet searches) which show that Getty's for example have taken (to use Coppee's term) small copyright breaches to court and won a case. You would think they would use any publicity as a deterrent factor.

There is alot of information about their enforcement procedures and people paying up before court action and a lot about Getty's not following up once someone disputes or puts an obstacle in place.

For 'old' photos, It would be interesting to see if any Photo Library can provide a 'chain of evidence' to satisfy a court that they have the legal entitlement to copyright. From the reading on this wonderful site, there are so many if, why and but's to make it hard to keep that evidence and the more the original records are 'junked' under digitisation projects, the worse it will become.

I find it very strange that the IPEC decisions are not published - do we know why?

AndyJ, keep up the excellent work.
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AndyJ
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PostPosted: Fri Apr 17, 2015 8:37 pm    Post subject: Reply with quote

tackler7 wrote:

I find it very strange that the IPEC decisions are not published - do we know why?

Hi tackler,
The majority of IPEC judgments are published. You can find most of them reported here. The IPEC has only existed since October 2013, and so for older case you need to follow the link on that page to its direct predecessor, the PCC.

However the cases I was talking about are those which go through the small claims track. Judgments in the smal claims court tend to be ex tempore and anyone other than the parties in the case would need to pay for a transcript to be made from the audio recording, so in general the cases aren't reported. This is why I was bemoaning the lack of Department of Justice statistics which we were promised, in order to gain some visibility of the workload of the court.
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tackler7
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PostPosted: Fri Apr 17, 2015 8:55 pm    Post subject: Reply with quote

AndyJ wrote:
tackler7 wrote:

I find it very strange that the IPEC decisions are not published - do we know why?

Hi tackler,
The majority of IPEC judgments are published. You can find most of them reported here. The IPEC has only existed since October 2013, and so for older case you need to follow the link on that page to its direct predecessor, the PCC.

However the cases I was talking about are those which go through the small claims track. Judgments in the smal claims court tend to be ex tempore and anyone other than the parties in the case would need to pay for a transcript to be made from the audio recording, so in general the cases aren't reported. This is why I was bemoaning the lack of Department of Justice statistics which we were promised, in order to gain some visibility of the workload of the court.


Sorry my misunderstanding. Thanks for the link.
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Copeequeree
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PostPosted: Sun Apr 19, 2015 6:06 pm    Post subject: Reply with quote

AndyJ wrote:
Hi Copee,
If by 'small copyright breaches' you mean cases where the value of the claim is below £10,000, then virtually all such cases will be dealt with by the Small Claims Track* of the Intellectual Property Enterprise Court, itself a part of the High Court. However since neither the court listings nor judgments of this court are published, it is hard to put a figure on the annual number of cases. Furthermore, despite assurances from the Department of Justice that they would publish statistics about the court's caseload, these have yet to materialise. However I think it is fair to say that the numbers of cases heard by the court are likely to be in the high tens rather than the hundreds. Since we have no statistics or written judgments to draw on, it is not possible to say how many claims of this type are successful.

Jane Lambert who is a practising barrister and also sits as a district judge in the small claims track court is on record as saying that around 50% of claims filed with the court are settled before being heard by a judge. When this figure is added to those which are never filed with the court in the first place and are resolved by settlements negotiated between the parties (with or without the involvement of solicitors) or through Alternative Dispute Resolution (ADR), it is clear that the majority of cases do not go to trial. As far as ordinary settlements and those which involve ADR are concerned, yet again no figures are publicly available, despite the latter often being provided under the auspices of the IPO and the Courts and Tribunals Service. And of course some claims will be abandoned at a very early stage. We have no confirmed figures for any of these outcomes, and any estimates which exist tend to be based on anecdotal evidence.

In contrast we can see very detailed figures (pdf) for all manner of activities concerning patents, trade marks and registered designs, albeit not that up to date.

As for your question on the likelihood of a picture agency taking action over infringement, this will vary between the companies based on their individual policies and the depth of their pockets. Getty, for instance, is well-resourced and has a reputation for aggressively pursuing those it feels have infringed their rights. However I suspect few of their cases are litigated in court because, when faced with the heavy weight legal teams employed by Getty, many individuals will agree to settle rather than face the expense and hassle of fighting. We can have no way of knowing how often this occurs. A company which fails to protect its IP invites further infringement.

*The small claims track also deals with claims for other forms of IP, including trade marks (UK and Community), passing off and registered and unregistered design rights (UK and Community). Copyright accounts for around 85% of the cases handled by the Small Claims Track, and of these, the majority appear to be concerned with photographs.


Yes I meant small one off use limited to a small print audience and not wide coverage on the web.

Thank you for your advice. I'm more secure now in my own mind.
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AndyJ
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PostPosted: Sat Apr 25, 2015 6:27 pm    Post subject: Reply with quote

Just a small correction. In my post dated 16 Apr 08.12 above, I mentioned the barrister Jane Lambert and said she also sat as a District judge. This is incorrect. Janet Lambert is the District judge I was thinking of. Apologies for the confusion.
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