Image use on website

Advice for those new to the concepts of copyright
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AndyJ
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Re: Image use on website

Post by AndyJ »

Hi altruistic_ranger,

The hearing fee is paid by the claimant. Only if the defendant loses will he be liable to re-imburse the claimant for the court costs the latter has had to pay thus far, which includes both the hearing fee and the fee to issue the claim. You may have missed this bit in Para 7.11 of Guidance Notes:
Fees are payable to the court by the Claimant when issuing a claim in the IPEC small claims track and when the final hearing is fixed, and by a party who issues an application. There may be exemptions available depending on the payer’s financial circumstances.
my added emphasis.

As for your other point, here's a definition of fraud by false representation taken from section 2 of the Fraud Act 2006:
2 Fraud by false representation

(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if—

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).
The methods used by these claims management companies are certainly morally dubious and tend to rely on the person who receives one of their claims being frightened by their threatening language, and paying up without question. But we have to remember that in many cases the underlying issue of copyright infringement will be true. Many recipients of these claims are not entirely innocent, although they may have been naive. The civil justice system is there to help the claimant get redress for the wrong which has been done to him. While that doesn't justify the tactics used by these companies, it does mean that their enterprise lacks the necessary criminal intent (note the words 'state of mind' in subsection (3)) to turn it into fraud. I'm sure that if you or anyone else decide to report these companies to Action Fraud, they will tell you this themselves. Unfortunately that will involve them diverting attention away from their proper job which is analysing and prioritising real frauds and allocating them to police forces to investigate.

If you really want to put these companies out of business, lobby your MP. If enough people do this, the Department for Business, Energy and Industrial Strategy might get the Intellectual Property Office to introduce legislation to outlaw it, but I won't be holding my breath on that.
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altruistic_ranger
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Re: Image use on website

Post by altruistic_ranger »

Hi AndyJ,

Surely there is a UK governing body for claims management companies? That regulates their activities?

Thanks,
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AndyJ
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Re: Image use on website

Post by AndyJ »

Hi A-R,

There's no overall regulator or industry association that I'm aware of. All claims management companies dealing with subjects in the financial sector, such as
  • financial services and products, eg PPI, payday loans, pensions and investments, and claims on a credit card (known as ‘section 75 claims’)
    personal injury
    employment matters, eg unfair dismissal
    criminal injury
    housing disrepair
    certain industrial injuries benefits
have to register with the Financial Conduct Authority (FCA), but more generalist claims management companies like Pixsy, PicRights, KodakOne etc fall outside this requirement. Indeed I doubt that many of these companies would describe themselves as claims management companies, preferring terms like 'copyright enforcement and claims resolution'. And to be fair, for some self-employed photographers they seem to offer an attractive service as I suspect they do make money for these individuals. But in order to make it a worthwhile proposition for photographers and make money for the company, they need to demand sums which are way in excess of what is fair, and what the courts would award by way of damages for a successful copyright infringement claim.

PicRights are members of a couple* of trade bodies which represent the creative industries, but they aren't in any sense regulated by them. I suspect the reason they joined was to spread the word about their services. Indeed someone named Geoff Cannon from PicRights sits on the CEPIC working group dealing with 'Best Practice on Copyright Enforcement'. Oh the irony. CEPIC have published their best practice advice (directed at creatives) which contains the following items:
2. Always make a friendly post-licensing offer as a first step.
[..]
4. Ask for realistic license fees or damages and be willing to settle for reasonable amounts. Do not allow your copyright enforcement partner to set claim amounts that can‘t be supported by your license fee structure.
5. Keep communication open with infringers and try to find an amicable solution.
[..]
7. Use credible escalation threats only. Do not threaten to escalate without having a legal basis for escalation.
I suspect that Mr Cannon forgot to pass those tips on to his own staff.



*The Digital Media Licensing Association in the USA and CEPIC in Europe.
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steviec
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Re: Image use on website

Post by steviec »

like so many on here I have had the pleasure of emails and a letter from picrights

the photo in question was a thumbnail on a page that is not even shown on the websites navbar (the page is used as a repository for useful information on BMW motorbikes and nothing more) though of course it willl appear if you trawl hard enough I suppose but it certainly isn't readily available to a public viewer.

I have no idea how the image even got to be there as my former colleague ( sadly dead now ) also had access to the page as he had an interest in teh same thing.

So far I have not responded to their emails or the one letter, is the advice to ignore them still the correct way to go?

thanks in hope of them crawling back under their rock where they belong

Steve
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AndyJ
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Re: Image use on website

Post by AndyJ »

Hi Steve

There are a couple of factors which make this claim a poor bet as far as PicRights are concerned. The first is that if your late colleague was responsible for uploading the image, then any claim should be against him, although that is obviously not possible now. It will depend on the nature of the website and if it is a company website. If it's the latter then the company will be vicariously liable for any infringement done by a member of the company. However if the website is a personal one, and you are the registered owner, not your late colleague, then you will probably be deemed responsible for what was/is on the website.

However, if this is a personal website and it doesn't have any commercial purpose whatsoever, then you might be able to rely on the fair dealing exception for the purposes of research and private study (see section 29 of the Copyright Designs and Patents Act 1988), as the image was not accessible by the public. Section 29 doesn't require this non-accessibility, but it strengthens your claim that this was done for private study purposes. Theoretically this exception requires that an acknowledgement of the source is given, but I think it is arguable that in this instance subsection (2) would apply because there is no way of attaching a credit to an image file, if it wasn't intended to be displayed on a web page.

I can't advise you on whether you should or shouldn't respond to the claim. It sounds as if they have your postal address, and this makes it simpler for them, if they choose, to serve a claim on you through the court. If this happens, do not ignore that claim as a default judgment against you could be the result and you won't have had the opportunity to give your defence or argue that the sum demanded is unreasonable (as it undoubtedly will be). I can't say what the chances are that they will drop the claim if you ignore it. However, if they are not aware of the strength of your defence (ie the factors outlined above) they cannot realisticallty assess their chances of success. In the words of the police caution, 'it may harm your defence if you do not mention something you later rely in court'. In other words, a failure to engage in the pre-litigation stages may be counted as an aggravating factor which could lead to additional damages being awarded against you under section 97(2) CDPA.

Good luck, however you decide to proceed.
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steviec
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Re: Image use on website

Post by steviec »

Many thanks, that give some direction at least..

Part of me says "just pay them and be done with the stress of it"

the other part says "this is a frivolous claim allied to bullying behavior"

Do you subscribers know of anyone who has actually been sued and lost over this sort of thing?
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Re: Image use on website

Post by steviec »

Here is an interesting swerve for you.

the photo that was "found" by picrights crawler bot thingy is here on reuters page at the link below

https://www.reuters.com/news/picture/ho ... ajb1LbDKOw

the photo has links to share the photo far and wide on facebook, twitter et al, presumably with a follow up letter from picrights informing you of your copyright infringement and a bill for £350

It seems something of a double standard to me?
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Re: Image use on website

Post by AndyJ »

Hi Steve,

Reuters is a news and picture agency so they aren't giving anything away for free! This is probably just a way of promoting their services, but if it leads to people mistakenly thinking that they have permission to use the images and then being hit with a letter from PIcRights, then that begins to look like entrapment.

A company in the USA ran an ooperation like that a while ago, using soft core porn films which they owned the rights to as bait. They put copies of the films up on various torrent and conventional hosting sites and then sued those who downloiaded the films. Once this was uncovered, the US courts took a rather dim view and sent a few of the leading players in the scam to jail. Google 'Malibu Media' and 'Prenda Law' for more details.
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steviec
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Re: Image use on website

Post by steviec »

Many thanks for all your help and insight

you said elsewhere that

"Hi baxter,
The claim could only relate to the short period when the infringement was occurring. However as the current licence which you now have is not time-limited, I'm not sure on what basis any damages could be calculated, since, as you say, the copyright owner is in exactly the same position now, financially speaking, as he would have been had you bought the licence at the correct time. There is no loss which needs to be redressed. As you have not mentioned any other factors which might attract additional damages, I think a formal claim would be pointless and a waste of the court's time."

The pic in question in my case, although picrights are pursuing it for Reuters, it's also available on ALAMY for Under £36 on a one website licence with no time limit https://www.alamy.com/a-woman-works-in- ... ium=impact

so would the answer just be to buy the licence from ALAMY and say to picrights yes I have a licence? As said above the copyright owner is then in exactly the same position ?
~

Just a thought
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Re: Image use on website

Post by AndyJ »

Hi Steve

The problem with that is the licence won't be retrospective* for the period covered by PicRight's claim. However as a court would only award damages based on the market value of the image, as represented by Alamy's licence fee, that would be a sensible amount to use in your counter-offer to settle the claim. Don't expect PicRights to accept the counter-offer straight away, as they will fight for a bit longer to try and get more. But they and their solicitors will know that, ulitimately, the Alami licence fee is the fair and reasonable figure for the market value of this particular image. So if you are prepared for a bit of a haggle with them, while standing firm with your counter-offer, you may ultimately succeed. Sadly no-one has come back to the forums recently to tell us the outcome of their negotiations with PicRights, so I can't say at what point, or indeed if, PicRights have dropped some of the earlier claims. But there must come a tipping point at which they conclude that it's not worth spending any more time or resources on an inflated claim which they know would not succeed if it went to court. Needless to say when they make that decision they will only consider their own position and not the interests of the photographer who would obviously be happy to receive the Alamy fee since that is what he or she receives every time someone takes out a licence in the normal course of events.


* Obviously if you would like to continue using the image, getting a new licence from Alamy would be sensible, as settling the claim with PicRights doesn't grant you any kind of enduring licence for future use.
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steviec
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Re: Image use on website

Post by steviec »

I was interested to read this line on the Government web page at https://www.gov.uk/government/publicati ... fringement

"It is the responsibility of the copyright owner to prove who has committed the infringement. This may or may not be the internet account holder."

Does this put the burden of proof on the claimant and if so how are they going to achieve that?
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Re: Image use on website

Post by AndyJ »

Hi steve,

Yes they need to have some evidence to show they have the right person. This may not neccessarily mean the identity of the actual person who uploaded the image, and could include the website owner, especially where this is a company because generally speaking the company will be vicariously liable for the actions of its employees. The rules are slightly different on a website where anyone may upload something without any knowledge on the part of the website owner, as for instance on a public forum. There the website owner is protected by Articles 14 and 15 of the EU eCommerce Directive (which was incorporated into UK law by the Electronic Commerce (EC Directive) Regulations 2002) provided he acts expeditiously to remove the alleged infringing item once notified about it.
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steviec
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Re: Image use on website

Post by steviec »

interesting, when this all came up i went to log in to my website editing platform (to see what was happening) and I had a warning from Google of a data breach where many of my passwords were compromised, (I took a screenshot of the warning from google) so presumably, given that situation, whoever had the password also had unfettered access to the website's build and edit platform?
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