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Creative Commons

Posted: Sat Aug 05, 2017 12:27 pm
by keith_12345
If a Creative Commons work that you reuse infringes copyright, do you break the law?

Posted: Sat Aug 05, 2017 12:37 pm
by AndyJ
Hi keith,

Yes, it doesn't matter whether a work has a CC licence attached to it or not: if it contains infringing material then anyone who copies it with the good faith belief that they are allowed to do so, may nonetheless be liable for secondary infringement. That said, such a person would usually have a good defence if they were to be sued and should normally escape paying damages, provided they had no reason to suspect the validity of the CC licence.

Posted: Sat Aug 05, 2017 12:41 pm
by keith_12345

Re: Creative Commons

Posted: Mon Nov 20, 2017 12:20 am
by Fatty
I would disagree with Andy J there. Assuming this is the usual case of an image copied on to a website by the defendant then it would be a primary infringement.

Secondly the 97(1) defence of not knowing is not knowing that copyright subsisted in the work which is very different from not knowing whether a licence was valid or not. A section 97(1) defence would be appropriate with a historic image, for example if you have a picture of Abraham Lincoln enjoying a night in a there you could please a 97(1) defence, however in the circumstances here it would fail.

Suitable case law would be David Hoffman vs Drug Abuse Resistance Education (UK) Ltd [2012] EWPCC 2 which you can find on bailii.

If the defendants are liable then the court must award at least the normal licencing price of the work in questions due to the Directive 2004/48/EC of the European Parliament and of the council of 29 April 2004 on the enforcement of intellectual property rights.

In the circumstances above the invalid CC licence may however protect the user from additional damages for Flagrancy pursuant to section 97(2)