Pixsy Demand - Again!

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lcsucr
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Pixsy Demand - Again!

Post by lcsucr »

Similar to the many other posts regarding Pixsy that have been kindly addressed, I have recently received an email from them stating that I have been ‘using their imagery without license or permission and that this is ‘a violation of their exclusive right to reproduce, distribute, display and prepare derivatives of their copyrighted work’.

This relates to a Flickr Attribution 2.0 Generic (CC By 2.0) image which I used to accompany a blog post, and like others, forgot the attribution. I am a UK-based Cat Behaviourist and write blog posts about cat behaviour for cat owners on a non-commercial, educational basis. I removed the photo immediately and deleted the two posts in which I had used the image to share the blog post.

Pixsy initially asked for £500, but by their second email had reduced it to £275. I contacted the photographer, who is Austrian and offered him £100 as a gesture of goodwill. All he did was let Pixsy know I’d been in touch with him, and they of course told me not to contact him again, presumably because they wouldn’t then get their share. They have formally rejected my offer which is the absolute most I can afford to pay them.

I saw some advise saying to ask them for proof of registered Copyright, which I did (though I’m unsure if this was the right thing to do) and they replied with “Over 170 countries around the world are signatories to the Berne Convention, including the US, Canada, UK and Australia. This means there’s copyright protection in all these countries, and under the Berne Convention, copyright is automatic. As the original creator, as soon as the photographer pressed the shutter button, their copyright was instilled in the work”.

However, looking at the Berne Convention document I saw that Article 10 ‘It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.’

Seeing as I used the image for the purposes of teaching and made no financial gain, I’m wondering I can apply this Article in my next email to them?

Likewise looking at advice from Creative Commons their standard states that ‘If your use would not require permission from the rights holder because it falls under an exception or limitation, such as fair use… the license does not apply, and you do not need to comply with its terms and conditions’.

I’m also confused about whether or not the ‘fair-use/transformative’ argument just relates to the DMCA which, given that this Act is sanctioned in the USA, presumably doesn’t apply outside of the States.

Reading through the other posts it seems that this is unlikely to go to court, but I’d like to be more confident about this!

Any advice would be gratefully received!
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AndyJ
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Re: Pixsy Demand - Again!

Post by AndyJ »

Hi lcscur,

By way of background to this issue, there is a current trend of targetting people who have used images released under fairly permissive licences such as Creative Commons but who have failed to meet the necessary attribution requirement. Creative Commons themselves deprecate the use of heavy-handed or monetary enforcement, and instead advocate the issuing of notices to users and giving them time to rectify matters (see this advisory).

However none of that really helps you with your specific problem. The Berne Convention is something of a red herring here as what is important are the national laws which govern how copyright works day to day. Under UK law there are exceptions for certain educational purposes and you can find the details in sections 32-36A of the Copyright Designs and Patents Act 1988. However, what counts as 'education' for these purposes is fairly narrowly defined and, generally speaking, it relates to schools, colleges and universities which are recognised by the Department for Education. As you can see, this doesn't really apply in your case.

Irrespective of the laws governing the copyright owner or the site where you got the images in the first place, what matters as far as your liability is concerned is UK law. The DMCA take down procedure is widely used and recognised across the internet as the de facto method of taking down infringing material, but since it is US domestic legislation it has no relevance in litigation which is conducted outside the USA. The important thing to remember when negotiating with companies like Pixsy is that in civil disputes (such as most infringement claims) the purpose of the law is to put the aggrieved party back in the position he would have been in, financially speaking, if a licence had been correctly obtained and adherred to. Obviously in the case of a CC license there is no loss of income to the photographer and so it is something of a grey area when it comes to assessing the damages. Usually the court will consider similar images which are available for a fee, and use that as a yardstick. I would not expect any court to just accept an arbitrary figure (eg £275) as the true market value of an image which is being released for free. So while I don't think this claim will ever reach a court, that contextualises the bargaining position of Pixsy when they threaten legal action.
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lcsucr
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Re: Pixsy Demand - Again!

Post by lcsucr »

Thank you so much Andy, I really do appreciate you getting back to me so quickly. I've been getting so caught up in the various laws that I'm no longer able to see the wood for the trees, I think I wanted some legal reinforcement of my position to be able to put to them, but your response has put things into context.

In relation to compensation I did find the following paragraph (35) in the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and wondered if it was applicable?

'In certain cases of exceptions or limitations, rightholders should receive fair compensation to compensate them adequately for the use made of their protected works or other subject-matter. When determining the form, detailed arrangements and possible level of such fair compensation, account should be taken of the particular circumstances of each case. When evaluating these circumstances, a valuable criterion would be the possible harm to the rightholders resulting from the act in question. In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive. In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise.'

I have asked Pixsy twice to provide me with a financial breakdown of the amount they are claiming on the photographer’s behalf showing which sums relate to compensatory damages, additional damages and which to costs, but needless to say they have not done so.

I have read the Creative Commons Advisory as well as a paper entitled 'Rise of the Copyleft Trolls: When Photographers Sue After Creative Commons Licenses Go Awry' by Daxton Stewart. What is clear from both is that some photographers choose not to upgrade to the latest Version of the CC licence because it has been updated to allow the license to be correctly attributed and reinstated within 30 days of the discovery of the error. By not upgrading they are not allowing users to correct their errors and are able to make claims through companies like Pixsy.

It's a fascinating, if scary world!
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Re: Pixsy Demand - Again!

Post by AndyJ »

Hi again,

Just in case you were thinking of relying on that extract from the Infosoc Directive which you quoted when dealing with Pixsy, you need to know that that paragraph is one of the recitals to the directive, that is to say it is an explanatory preamble, and does not form part of the operative section of the Directive, which is made up of Articles 1 to 15. Needless to say, none of the Articles of that Directive specifically refer to the sentiments expressed in Recital 35. Indeed Article 8, which deals with sanctions and remedies, actually requires that sanctions etc are dissuasive (ie punitive).

The Directive we need to consult is a different one, namely Directive 2004/48 entitled Enforcement of Intellectual Property Rights. Here you will find nothing similar in tone to the last sentence of Recital 35. In the Enforcement Directive the talk is, once again, about measures and remedies being dissuasive (Article 3.2). And Article 13 on the subject of damages highlights the need for courts to consider the economic damage caused by moral prejudice.

This last point highlights a significant difference in attitude, between the UK (when it was still a member) and Ireland on the one hand and the other EU member states* in continental Europe, over the importance of moral rights within the overall protection provided by copyright. We and the Irish see copyright as fundamentally an economic bargain between society and individual authors, whereas continental Europeans see these rights as stemming from the personality and honour of the author (indeed they prefer the term droits d'auteur - author's rights). Thus to them, and this is reflected in the wording of the directives, the omission of the author's name is a grave slight on the author. While we may think that the standard term for copyright of the lifetime of the author plus 70 years after his death is a little excessive, in France the moral rights** of an author are perpetual.

That's all by way of background, and not really much use to you in your current dispute. Sorry!


*Technically speaking the EU states of Malta and Cyprus derive much of their legal systems and law on intellectual property from the time when they were British colonies and so they also don't place as much value on moral rights as the remainder of EU member states.
** Moral rights include the right to be named as the author of a work; the right not to be named as the author of a work created by another person and the right for one's work not to be traduced, defaced or treated in a manner which damages the honour of the author.
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Re: Pixsy Demand - Again!

Post by lcsucr »

Thanks again Andy. I'll leave everything out that doesn't relate to UK law and will keep you posted on the outcome!

Kind regards.
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Re: Pixsy Demand - Again!

Post by lcsucr »

Just an update on my Pixsy case. I put together an email containing all the various bits of advice that I'd been given and information that I had researched and sent it to them on the 4th of January. I've pasted the email below. I have now been arguing with Pixsy about this since last November, and today they sent me a Legal Escalation Notice. I have until this Friday to either pay the sum demanded or they will use their Legal Resolution Program to "seek the highest possible damages for unauthorized commercial reproduction of our client's work". I'd love to be able to stand my ground, but being self employed and the only person in a tiny company there's no way I could swallow the costs involved if this went to court. I was fairly confident that they wouldn't bother taking action when the amount involved is only £275 so I'm now wondering if I should reluctantly cave in and pay or call their bluff?

Email Sent to Pixsy on 4th January
"In response to your email of 27th December. Your mention of The Berne Convention is somewhat misleading in this context. What is important are the national laws which govern how copyright works day to day in other words, UK Law specifically the Copyright Designs and Patents Act 1988. This makes a fair dealing provision for work used for the sole purpose of illustration for instruction stating that it does not infringe copyright ‘provided that the dealing is for a non-commercial purpose’.

In my case the image was used to illustrate an educational article aimed at teaching cat owners about cat behaviour. I did not receive any financial gain from this post, it was entirely non-commercial and used for educational purposes only.

The Creative Commons standard under which Mr Radic’s photo was licensed also states that ‘If your use would not require permission from the rights holder because it falls under an exception or limitation, such as fair use… the license does not apply, and you do not need to comply with its terms and conditions’.

Creative Commons also advise the following protocol be used when dealing with potential infringements of their license:

1. ‘If it could be a good-faith error, send a request.
The best first step is to send a request to the user describing what is wrong, reminding them what the CC licenses require, and asking them to fix the error. Many errors in use or attribution are simply mistakes, and a polite request will prompt the reuser to fix them.

2. If your first request was unsuccessful, if the matter is clearly bad faith, or if it is too time-sensitive to wait, send a takedown notice.’
As I complied with the first protocol immediately, this should have been the end of the matter.

It is also interesting that Mr Radic has not upgraded to Version 4.0 of the CC license, updated in 2013 (a year prior to Mr Radic posting the image in question under the V2.0 license). As I’m sure you know V4.0 has been updated to allow the license to be correctly attributed and reinstated within 30 days of the discovery of the error. By not upgrading he is not giving users like myself the opportunity to fix the error prior to demanding a license fee. And even in cases where photographers have not upgraded to the latest Version of the CC license, Creative Commons advise: ‘When you contact someone about a violation of the pre-4.0 license terms and they take the necessary steps to correct their errors, it is recommended that you follow the 4.0 practice of reinstating the license.’

Maintaining older version of the CC license allows photographers to use Pixsy, not to protect their work, but as a means of generating an income, as one user on Reddit describes his “income” from supposed copyright infringements chased by Pixsy as being $30k in one year “and that's for a really minimal amount of work on my end”.

Irrespective of the laws governing copyright, what matters as far as my liability is concerned is UK law. In the UK this infringement claim would be classed as a civil dispute and in this case the purpose of the law is to put Mr Radic back in the financial position he would have been in if the terms of the licence had been adhered to. As the image was licensed through Creative Commons Mr Radic is making it available for free, so there is no loss of income to him.

This is why I would like to understand how you have calculated your £275 penalty. Unless you can break this down for me, I will assume it to be an arbitrary figure and one which would not be seen by a court as the true market value of that image.

By removing the image and deleting the associated posts immediately, I have taken every reasonable step to maintain the integrity of Mr Radic’s work and to ensure no economic harm to him. As such there is no legal reason for me to pay the fee you are demanding. My offer of £100 stands.

If you reject this offer again and threaten legal proceedings I will politely request that you ask Mr Radic to contact me directly. As I understand it, Pixsy is not a law firm and it is therefore not appropriate for me to discuss legal matters with a third-party company. If Mr Radic wishes to issue proceedings in the UK Small Claims Court he is free to do so. However, such proceedings would have nothing whatsoever to do with your company."
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Re: Pixsy Demand - Again!

Post by steviec »

we watch with interest, good luck, keep us posted 8)
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AndyJ
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Re: Pixsy Demand - Again!

Post by AndyJ »

Hi lcsucr,

I think your response to Pixsy is excellent. I know you are concerned about the potential costs of litigation if they carry out their threat, but really, given the amount being demanded no legal firm would advise them to proceed when the odds of them losing are so high. If you do get a letter from their solicitors (technically speaking it will be the photographer's solicitor) then I suggest you contact a solicitor for a free consultation on where you stand. You can find a suitably qualified solicitor who specialises in IP matters via the Law Society's Find a Solicitor website. Just scroll down to 'Media IT and Intellectual Property' under the Business heading. Then select your area, and see what comes up. When you phone, make sure they offer a free introductory consulation. This will usually be over the phone.
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
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