Copyright Agent / Alamy alleged infringement

[Fej123]

Hello I am new to this forum and have searched on the topics to find a similar situation to mine but was unable to find anything, so am posting and hoping someone might be able to point me in the right direction.

The overall question I have is this: if you run a directory website which accepts user submissions, are you liable for infringement of any images they may upload?

A specific case we have is CA are claiming infringement for an image used in a PDF of a property brochure which has been uploaded to our site via an etate agent, automatically and direct from their system via an aggregator.

The image does exist on Alamy, costs £24, and the license headlines say

• Unlimited usage across websites and social media platforms including short-form-video on video sharing sites
  
  Can be used in digital publishing and digital marketing
  
  Print runs of up to 5,000 for print marketing and self-published book
  
  For one user only

My question - is this actually our problem? Should I ignore the letter claming £400, or write back and just refer them to the property developer? Also does anyone actually use the online logins these people want you to use?

Any advice gratefully received! Many thanks.

[AndyJ]

Hi Fej123 and welcome to the forum.

If you run your website in a similar way to a forum in that you allow members to directly upload their own material without any prior editorial intervention from you, then you enjoy what is known as safe harbour protection. This comes from both the US Digital Millennium Copyright Act (DMCA) and the EU's ECommerce Directive. (see Articles 14 and 15). The latter remains embodied within UK law even though we are no longer in the EU.

Both these bits of legislation shield you from liability for any alleged infringement by third party users, provided that once you have been informed of any such material you act expeditiously to remove the alleged material. Article 15 of the ECommerce Directive goes further in that it explicitly exempts you from actively monitoring what is placed on your site, although this provision has been watered down slightly by Article 17 of the 2019 Digital Single Market (DSM) Directive. However since the UK had left the EU before the DSM Directive came into force, its provisions do not apply in the UK.

[Fej123]

Hi Andy

Many thanks for this, much appreciated.

Could I lso ask please, would the same protection apply if (as happens not in this case but in other areas of the site), an approval from us is required before a post goes live?

Fej

[Fej123]

Sorry, Andy having read your reply again I guess this might fall under the "prior editorial intervention", is that correct?

Fej

[AndyJ]

Hi Fej,
Yes prior approval would alter the situation. The site owner/moderator would then becomes a publisher. However there would be a good argument to say that provided that person has no knowledge that the image is an infringing one and since he is only a secondary infringer (ie not responsible for the actual infringement of copying/making the image available) - see Section 23 CDPA

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.

then section 97 (1) could be invoked:

97 Provisions as to damages in infringement action.

(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(my added emphasis in both cases)

[Fej123]

That's really useful Andy, many thanks, really appreciated.
Fej