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Who is responsible

 
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James 123
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PostPosted: Fri Mar 18, 2016 12:50 pm    Post subject: Who is responsible Reply with quote

I contacted an infringer who took my images down immediately. The infringement dates from 2012 up until they took the photos down. They sent an email saying they took over the website a year ago. The change of registered business number on the website looks to confirm this.


My question is who would be responsible for the infringement?
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AndyJ
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PostPosted: Fri Mar 18, 2016 8:30 pm    Post subject: Reply with quote

Hi James,
Whoever created the website is initially liable,but liability would not end with the transfer of the business, so the current owner of the website would be jointly liable. However, a barrister would probably be able to argue that the second owner should not be liable for damages due to the last part of section 23:
Quote:
23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner—
    (a) possesses in the course of a business,

    (b) sells or lets for hire, or offers or exposes for sale or hire,

    (c) in the course of a business exhibits in public or distributes, or

    (d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,]
an article which is, and which he knows or has reason to believe is, an infringing copy of the work.
since there was no reason for him to believe the image was an infringing copy. And since he has now removed the image, it doesn't leave you any other available remedy.
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James 123
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PostPosted: Sat Mar 19, 2016 11:01 am    Post subject: Reply with quote

Thanks for the reply Andy

Would the creators of the website have committed an offence under section 107
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AndyJ
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PostPosted: Sat Mar 19, 2016 1:23 pm    Post subject: Reply with quote

Hi James,
No, it is highly unlikely that what you have described would amount to a criminal infringement. That level is usually reserved for large-scale copying or hosting of infringing works, obviously being done as a business. So for instance people who mass-produce copies of films on DVD or, who host pirated music and movies online, are the main targets. Any charges under s 107 would need to be brought by the police or Trading Standards, who tend go after the easier to prosecute targets where there is strong evidence and a reasonable chance of getting a conviction. Since your images each appear to have been copied only once by a single individual, that would be a civil matter.
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James 123
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PostPosted: Sat Mar 19, 2016 5:45 pm    Post subject: Reply with quote

Thanks for the reply Andy

In s107(e) it states 'an infringing copy of a copyright work'
As its singular I was thinking (hoping) that this would be an infringement.

One of my photos has been used by the infringer many times on the
website, would this be one infringement or an infringement for each
time the photo appears on the site?
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AndyJ
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PostPosted: Sat Mar 19, 2016 7:01 pm    Post subject: Reply with quote

Hi James,

I'm not aware of a case in which a court has had to decide on this issue, where the image has been used several times within a site. Because the site itself is just a collection of code, that is not where the copying takes place. There will normally be just one digital copy of a file held on the server, which would be called once in order to display the finished website on the viewer's computer screen, and the multiple appearances would be generated by repeatedly using the single copy held in the end user's cache. We have had it confirmed by the Court of Justice for the European Union that that last process (displaying on the user's screen and holding the image in cache) is not an infringement under EU law because it forms part of the technical process for making the site available. This means that viewer of the site does not infringe, even though what he/she views is actually an infringing work, unless they themselves deliberately make a copy on their harddrive or printer.

The infringing copy, then, is the one on the hosting server. And since it is there without permission, there can be little doubt about its infringing nature. But that fact that it appears a number of times across the same website does not, I believe, constitute a series of infringements. And even if it did I think you, as a complainant, would need to show that if the use of the image had been licensed, the cost of the licence would have been determined by the fact that it was intended to use the image multiple times within the site, as opposed to the number of clicks the site received or some other metric. Generally, licences for website use are limited by duration or overal visitor numbers (based on Google analytics for instance) rather than by individual occurrences of the work because the latter are much harder for the licensor to monitor to ensure compliance. I have never seen a licence used, say, by the stock agencies to cover multiple use throughout a site. However where individual photographers have drawn up their own licences, I suppose such a thing might have been done.
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James 123
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PostPosted: Sun Mar 20, 2016 10:31 am    Post subject: Reply with quote

Thanks for your reply Andy

From your answer I now know how I will deal with the infringers who have used my images multiple times.

You have brought another question to mind. If the infringing copy is on the
hosting server what about people who hotlink to images, are they infringing.
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AndyJ
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PostPosted: Sun Mar 20, 2016 5:09 pm    Post subject: Reply with quote

Hi James,
No, using links, and indeed, framing, does not amount to copying because the source of the image (etc) remains the original host. In fact the Court of Justice of the European Union has appeared to say this is the position even where the original source of the link is itself unauthorised. In a decision known as Bestwater, (unfortunately a copy of the Court's decision is not available in English) they held that it was not an infringement to use framing to link to content held on a third party website, without referring explicitly to the fact that in that particular case, the content had been uploaded without permission. Several critics have commented that this is a perverse outcome.

There is a further case, known as GS Media, currently under consideration by the CJEU, and it is possible they may use the opportunity to clarify their earlier decisions, with a specific mention about links to unauthorised content.
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James 123
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PostPosted: Sat Mar 26, 2016 1:19 pm    Post subject: Reply with quote

Back to my original question about the company changing hands.

I asked the present company for details of the previous company
and was told company A who ran the website before us was owned
by company B who was an arms and lengths company of company C.

The present company said I need to speak to company C, I contacted
company C and was told you need to speak to Mr X who headed company A.
I asked for contact details for Mr X and was told he is the head of the present
company, they said the only thing that has changed is we no longer fund
them.

So my question is, if the previous and present companies are the same
except for funding and registered business number am I dealing with
one or two infringers.
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AndyJ
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PostPosted: Sat Mar 26, 2016 3:28 pm    Post subject: Reply with quote

Hi James,

I am assuming that in all cases the companies referred to are ones limited by guarantee, and not unincorporated entities, such as sole traders.

From what you have told us it sounds as if Company A and Mr X would be joint tortfeasors (ie joint defendants) in an infringement claim. If Company A has ceased trading, but Mr X was a director of that company, you can go after him in his own right, since directors are liable for the financial liabilities of their companies as part of their fiduciary duties. There may be some debate over the role of Company B when it comes to the liabilities of Company A, but in the first instance, approach the matter directly with Company A if they are still trading. And it sounds as if Mr X was what is known as the 'controlling mind' of Company A, hence the reason he is likely to be jointly liable for any infringement carried out by Company A. If Company A has been dissolved, then Mister X alone is likely to be liable for the infringement, unless Company B took over any of the liabilities of Company A. Company C would only be involved to the extent that it was liable for Company B's liabilities.

If it gets more convoluted, you may need to engage your own solicitor to unravel the mess.
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James 123
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PostPosted: Sun Mar 27, 2016 3:02 pm    Post subject: Reply with quote

Thanks for the reply Andy

A search on the Companies House website shows

Present company - companyname CIC
previous names - companyname LTD (company `A` in my previous post)

Mr X being the MD of both of these companies

Would this make them one company or two?
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AndyJ
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PostPosted: Sun Mar 27, 2016 3:54 pm    Post subject: Reply with quote

Hi James,

They are two separate entities, legally speaking. Both are legal 'persons' and can be sued.
However if Compnay A has ceased trading or morphed into the CIC (as appears to be the case) then in all probability the CIC will effectively be liable for any past torts of Company A, especially as the managing director of both is the same person.

A Community Interest Company is slightly different to a normal private limited company in that it will usually be answerable to a regulator, and its activities will be fairly tightly constrained, for example it may well be a not-for-profit organisation. It is not unheard of for a normal limited company to be converted into a CIC, assuming that its purpose(s) is/are largely intended to benefit the community, but where charitable status may be too restrictive or inappropriate.

The fact that there is a regulator in place to oversee the activities of the CIC may strengthen your hand when it comes to sorting out the liabilities of the various companies and individuals involved in this case.
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James 123
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PostPosted: Wed Mar 30, 2016 4:23 pm    Post subject: Reply with quote

Thanks for the reply Andy

Last edited by James 123 on Thu Mar 31, 2016 9:11 am; edited 1 time in total
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AndyJ
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PostPosted: Wed Mar 30, 2016 6:08 pm    Post subject: Reply with quote

Hi James,

We have now strayed a long way from copyright which is what this forum is intended for, into the realms of company law. I think you need to consider engaging a solicitor, or going to Citizens Advice, either of whom can give you advice tailored to your specific case and the companies/council involved. Apart from anything else the company is more likely to take your claim seriously if it is being handled by a solicitor or legal exec.

Good luck.
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James 123
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PostPosted: Thu Mar 31, 2016 9:33 am    Post subject: Reply with quote

Thanks for the reply Andy

As my last post was off topic I have deleted the post.

I did try to engage a solicitor 6 months ago but had no luck.
Their prices can be as much as £400 to send a take down notice.
It looks like I will need a solicitor for this one. I'll start
looking again today.
Thanks again for your advise Andy
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