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surfgatinho
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PostPosted: Tue Mar 17, 2015 3:58 pm    Post subject: User generated content Reply with quote

Hi again,

Slightly different issue to the straightforward copyright infringement when the website owner is responsible for the uploaded content.

In my line of work I have to compete with large companies who run paid listings. I frequently find my images being used in these listings, so it is a double whammy for me!

Now as far as I understand the company running the website is not ultimately responsible for the infringements caused by its users. Which is fair enough.
I believe there are some caveats to this, such as they must be able to show they weren't responsible. But, am I right to think they must be able to also show who was responsible for uploading the content?

I assume that as my works are being used without my permission and for another party's financial gain then I am entitled to take action.
Would this be as straightforward as sending my demands to the companies responsible for posting the material or are there other steps to be taken?

I'd greatly appreciate any help with this as it has been bugging me for years.

Many thanks,
Chris
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AndyJ
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PostPosted: Tue Mar 17, 2015 6:01 pm    Post subject: Reply with quote

Hi Chris,
I'm going to assume that the majority of sites you have problems with are based in the USA or Europe. When I say based, I mean that their servers are located there and/or that is their main place of business.

For sites in the EU the rules are based on the EU eCommerce Directive 2000/31 and the relevant bits as far as your problem is concerned are contained in Articles 12 -15:
Quote:
Article 12 - "Mere conduit"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
    (a) does not initiate the transmission;

    (b) does not select the receiver of the transmission; and

    (c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.

Article 13 - "Caching"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, on condition that:
    (a) the provider does not modify the information;

    (b) the provider complies with conditions on access to the information;

    (c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

    (d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

    (e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.

Article 14 - Hosting

1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
    (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

    (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.

Article 15 - No general obligation to monitor

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.

As far as the USA (and to some extent, the rest of the world, due to a number of treaties with the USA) the relevant legislation is the Online Copyright Infringement Liability Limitation Act (OCILLA) which inserted Section 512 into the US Copyright Act of 1976. Section 512 is too long to quote here, but by following the link you can quickly see that it contains very similar provisions to the EU Directive. The Americans tend to refer to this as the 'safe harbor' doctrine.
So from these two pieces of legislation, you can see that as long as the service provider has no knowledge of the material, and they act expeditiously to remove it once they are made aware, then they face no liability for the alleged infringement. Only under the US law do service providers have a duty to inform the user who made the posting which is the subject of the allegation, although in principle this tends to be fairly universal, where the identity of the person is known. Providers are not required to pass the user's details to the copyright owner, and in general this would require a court order (something known as a Norwich Pharmacal order in the UK). With the exception of the larger sites such as Youtube and ebay etc who have to deal with millions of takedown notices every year, it might be worth you contacting the service provider to see if they are prepared to release the details of the user responsible for posting the material complained of, but don't be surprised if you get a refusal. Clearly getting a Norwich Pharmacal order can be relatively expensive so you wouldn't want to go down that route unless there was a good deal of potential damages at stake.
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surfgatinho
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PostPosted: Tue Mar 17, 2015 9:59 pm    Post subject: Reply with quote

Hi Andy,

Many thanks for such a thorough and informative response.

Looks like a take down is the best result I can hope for.

Another case I've just come across is where the photo has been provided by the advertiser and posted (in good faith) by the website owner.

However, when I requested they removed the image they threatened me with solicitors and legal fees.

I'd guess in this case they are still technically responsible for the infringement.
Would this be the case?

Thank you,
Chris
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AndyJ
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PostPosted: Tue Mar 17, 2015 10:55 pm    Post subject: Reply with quote

Hi Chris,
If the website owner has obtained an infringing photograph, whether in good faith or not, then clearly the provisions I mentioned earlier won't apply because they have knowledge and control over the activity (even if they are unaware that the images are infringing). On that basis they are likely to be liable for secondary infringement:
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.

The last sentence appears to provide a defence, but in fact the matter is one of strict liability, ie ignorance is no defence, and it would require some positive evidence that would have led the site owner to believe the work was not an infringing copy. And of course, the advertiser would be liable for primary infringement.
Quite often the person who uses threats of litigation to counter a claim of infringement is acting either in ignorance of the law or is hoping to bluff their way out of trouble. Unfortunatelty you sometimes have to resort to your own solicitor's letter before they can be persuaded to see sense and settle the matter.
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surfgatinho
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PostPosted: Wed Mar 18, 2015 10:18 am    Post subject: Reply with quote

Thanks again Andy,

Please let me know if I'm asking too many questions! Hopefully I will be able to post my personal experiences here to help others, in return.

From what I can ascertain, as you point out, unwitting infringement is still infringement. For example:

Innocent infringement is not a defence, says Judge Birss QC:
http://the1709blog.blogspot.co.uk/2012/01/innocent-infringement-is-not-defence.html

I still can't quite understand whether my particular case would comprise primary or secondary infringement.
To some extent this is a moot point as at this stage I only see the legal points as a bargaining tool.

What I did also read about secondary infringement is that:
Quote:
the plaintiff is not entitled to damages against him, but without prejudice to any other remedy
http://www.legislation.gov.uk/ukpga/1988/48/section/97
.

As I still haven't got a clear understanding of what the awards made in court are I'm struggling with this a little.
As I understand an invoice for a retrospective license is merely an out-of-court settlement between parties. If the case were to go to court then I would be requesting what exactly. Remedies and damages I assume.

I suppose, what I am asking is, if this case went to IPEC Small Claims and it was considered secondary infringement, would I still be entitled to (at least part of) the claimed license fee?

Thank you,
Chris
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AndyJ
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PostPosted: Wed Mar 18, 2015 11:01 am    Post subject: Reply with quote

Hi Chris,
A defendant who is liable for secondary infringement only escapes having to pay damges if he "did not know, and had no reason to believe, that copyright subsisted in the work". As I mentioned earlier, this kind of defence would need to be supported by some sort of positive evidence, for instance the supplier of the image provided him with a copy of a licence purporting to have been issued by the copyright owner. In most cases it will be assumed that a site owner knows that copyright will apply to an image (ie it isn't in the public domain) and so where the owner has commissioned the supply of the image, he would be required to satisfy himself that the image had been obtained with permission.

The remedies available through the IPEC small claims court are damages, orders for the destruction of the infringing copies and if necessary injunctions preventing future use of the copies. Damages can be calculated using one of two methods: loss suffered by the copyright owner (ie the fees he would have got had the image been used with permission) or an account of profits, that is a calculation of how much the infringer benefitted in economic terms from the infringement. The latter is more applicable to the situation where a specific product incorporating the infringing copy has been put of sale, rather than for indirect financial benefit, say through operating a website. Damages may be augmented if the infringement is flagrant and this could also apply to a secondary infringer, who for example, continued to use an image after he had been made aware that it was being used without permission. Or indeed if the secondary infringer made unwarranted threats!
The successful claimant can also apply for his costs to be awarded against the defendant(s) and there are various factors the court will take into account in deciding the level of costs. You can find more details in Practice Direction 63.
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surfgatinho
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PostPosted: Thu Mar 19, 2015 5:32 pm    Post subject: Reply with quote

Thanks yet again Andy.

I'm happy to proceed with this case. If only to teach these people a little bit about intellectual property rights and not to patronise me!
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surfgatinho
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PostPosted: Tue Mar 24, 2015 9:51 am    Post subject: Reply with quote

1st update.

Having initially asked the company to take down one of my images and receiving a patronising and vaguely threatening response I have carried out further investigations.

I have now found 7 of my photos on their website that have also been posted to social media and third party industry websites.

I posted a letter outlining the images being used without permission and requesting fees for retrospective use and if they required, for future use. This arrived with them via registered post yesterday morning.
As of now, all the images are still in place, including the one I requested to be taken down a week ago.

The letter actually only includes mention of 4 of the images I discovered more later on. This I think is a positive as I will be able to gauge their behaviour and if they try and dispute the original infringements I will have screen-grabs of these countersigned by a solicitor.

So now I guess I just wait 14 days and see what they do.
I have a feeling this case will end up going to court. Obviously I would prefer to avoid all the time and hassle, but on the other hand I am planning on doing a lot more of this so experience of the process will be valuable.

If I have to send a further letter in 14 days, is it considered a letter before action or should the second letter just be a stronger form of the first, pointing out what evidence I have and suggesting their infringement could be considered flagrant?
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AndyJ
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PostPosted: Tue Mar 24, 2015 9:29 pm    Post subject: Reply with quote

Hi Chris,

It sounds as if you have the bit between your teeth on this one. I hope that your determination will be evident in your communication with the owners of this website and they will see the sense in meeting your terms, or at least in engaging with you in a meaningful way, in order to avoid the need for a court case. Once they show some intertest in arriving at a settlement, going down the mediation route may be a good alternative. You can find out more about the IPO's alternative dispute resolution options from this link.

Your second letter, should it be required, is still a letter before action, and is rather like a second reminder of an unpaid invoice. It is certainly no bad thing to spell out clearly the strength of your case and the amount of documentary evidence you have to support it. You should encourage them to seek proper legal advice because this ought to bring home to them the consequences of denying your claim and hopefully lead to them agreeing to seek a settlement. You can certainly point out that the longer they delay in replying to your letter, and entering into dialogue, the more detrimental this could be to their position when the matter of determining damages comes before the court, should things progress that far.
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surfgatinho
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PostPosted: Tue Mar 24, 2015 10:17 pm    Post subject: Reply with quote

Thank you for more great advice Andy.

I actually received an email from the infringing party today. It was actually quite shocking how ill-informed they were on IP rights for a company that largely operates online. They actually appear to be under the impression if its on the internet and doesn't say otherwise it is free to use?!

They are going to talk to a solicitor so hopefully it will get sorted.

As long as they make an offer that isn't too derisory I'll take it. My problem (in general!) is they have turned it into a principle thing by being confrontational from the start.
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