Plagiarism of Blog Articles

If you are worried about infringement or your work has been copied and you want to take action.
AnnH
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Plagiarism of Blog Articles

Post by AnnH » Mon Jun 04, 2018 8:04 am

I wonder if someone could help me please. I have a good understanding of the copyright laws as they apply to England and Wales - from the perspective of photographs.

However, I am currently finding myself dealing with several cases where some of the text based articles I have written on my blog have been plagiarised (usually in their entirety) and placed on the business websites of other photographers. Ironically some of these articles are about Copyright! No permission was given, and there is no attribution of myself as the original author. All parties are therefore passing off the work as their own.

I would like to check that copyright laws apply in the same way to plagiarism as they do to photographs, and if that is still dealt with in the same way under the umbrella of ‘copyright infringement’. I understand in the USA there are sometimes subtle differences between the legalities of the two (I am in the UK and the infringements have taken place in this jurisdiction).

If my photographs are used without authorisation I will instruct the infringer to remove my content and I will normally send an invoice. In a similar way, can I invoice for the use of a written article?

Advice would be much appreciated.

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Re: Plagiarism of Blog Articles

Post by AndyJ » Mon Jun 04, 2018 9:35 am

Hi Ann,

In general terms, copyright applies in the same way to literary works as it does to artistic ones, including photographs. However there are a couple of exceptions in the fair dealing categories (eg data mining and quotation) which really apply more to literary works, than to the other types of copyright works.

If you are sure, because of the amount of your work which has been copied, that this can't just be a case of coincidence, and there is no acknowledgement of you as the original auther, then the fair dealing exceptions will not apply. Secondly the amount that has been copied needs to be 'substantial'. Generally substantiality is measured in qualitative terms, ie what they have taken is the essence or heart of what you wrote. It sounds from what you have said that this test will easily be met. You have a number of remedies available, although I suspect that you won't be considering full blown litigation as the cost would far outweigh any benefit you might gain. As a precursor to any action you take, make sure you make screenshots of the articles concerned, so that if there is any come back later on, you can prove that the copying occurred, even though the articles may subsequently have been taken down. You should do the same after contacting the websites, to show whether or not they have complied with your demands.

If you would be happy for the articles to remain on the respective blogs/business pages but with an acknowledgement that you are the author of what has been quoted, just contact the blog owners and ask for this to be done. I say 'ask', but in fact this will be more of a demand backed up with a threat of 'or else' otherwise I don't think your request will be taken seriously. However I suggest you keep the tone polite and businesslike, as you are effectively inviting them to enter into a relationship which is to your mutual advantage: you get an acknowlegdement and they don't get sued! You need to point out that what they have done is grounds for a legal action action, because many people fail to appreciate that they can't just take anything they find on the internet and pass it off as their own. You may even find that they will blame their web designer for the copying.

However, if you just want the offending articles removed, you can be a lot more blunt when you demand this. Here the threat is not so much about the law on copyright infringement, although that still applies, but in the powers available to you under the EU's Electronic Commerce Directive* (articles 13-14) and the better known Digital Millennium Copyright Act (DMCA), to get the hosting services for the sites to remove the articles/pages which contain the copied material. Technically the DMCA, because it is a US law, doesn't apply to a purely UK situation, but if the businesses concerned are using hosting services (eg Wix or GoDaddy) which are American, these hosts will recognise and respond to a correctly formulated DMCA takedown notice. And because it is a good system, most entities on the internet recognise DMCA takedown notices as being the standard, even though the EU Directive may be the actual legal basis for the notice.

You mention invoicing. There's nothing to stop you doing so, but I suggest that, realistically, the fees you can demand would be so low as to make it unlikely to be worth it. If you demand a relatively high fee, the effect will probably be that your approach will be ignored and you are then faced with the decision to either sue or drop the matter. The problem with speculative invoicing (ie where the other party did not enter into a contract with you beforehand) is that you will rarely be able to pursue the matter as a money claim through the normal small claims courts.

* The eCommerce Directive was brought into UK law by the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013).
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Re: Plagiarism of Blog Articles

Post by AnnH » Mon Jun 04, 2018 11:48 am

Andy, thank you so much for the immensely helpful and very comprehensive reply. It is greatly appreciated.

In cases of infringement I follow the prescribed pre-action protocol. So far I have not had to progress to court with the other cases I have had over the years. If I did, I believe it would be the small claims track at the Patents Court - it seems that would be the correct route for plagiarism.

Regarding the articles in question, they are quite important and have brought a good amount of traffic and interest to my website. I'm extremely unhappy that other business owners have simply copied those articles (word for word) and in a substantial form - the two infringements I’m dealing with at the moment range from 3,500 words to 5,000 words. Only the opening couple of sentences and the closing sentence appears to have been written by the infringer.

I would not have allowed these articles for reposting, by anyone, attribution or not. A great deal of time and research went into writing them, and therefore overhead. One of the infringers, having scrutinised their website, has hosted my content without consent for just over six years, the other for the past 9 months.

As you say, I believe fair dealing would not be applicable.

And it is flagrant - anyone illegally reproducing an article on copyright arguably knows exactly what they are doing and the likely consequences. I also think there is an overriding belief that if they are caught out they will simply be asked to remove the material, and nothing more. That seems like a poor deterrent.

My first step is always to politely inform the website owner that they are using material which they do not have permission to use, and I demonstrate that the material is mine. I also require that they remove that material forthwith, and inform me how long they have been using it, where, and any other instances of any other material to which I hold title.

It is my policy to then invoice infringers when the material is substantial and where the infringement is blatant and applies to a business. My invoices are always fair and reasonable and based on what I would have charged had permission being granted in the first place. I do not apply any uplift for unauthorised use. So far (and this concerns photographs) I have been successful and have not had to proceed to court, though on occasion I have had to resort to a letter before action.

Whilst I have not yet had to go as far as the small claims track in the Patents Court (I don’t know how much is involved in that - I'm hoping just a few forms and the preparation of an information pack) I would probably be willing to do so. I do not believe there is any prospect that the infringer would not be held entirely liable and in these cases I strongly suspect the court would also apply uplift for flagrancy and very likely lack of attribution, and the infringer would be required to pay some of the associated costs. Legal representation isn't a requirement for the kind of cases I have dealt with so far and am dealing with now, so I would not have those costs to worry about. Therefore overall, it would be whether I would accept the ‘hassle quotient’ which you have alluded to in recovering relatively small levels of compensation. On principle, yes. I also feel that the infringer would consider their own level of hassle, a zero probability of winning, the cost of legal advice should they seek it, and lack of reputation.

The compensation I would be seeking would be aligned with the fee I would have charged had I granted licence for the work to be used. In one of my current cases that would only be a couple of hundred pounds. In the more extended case where the material has been used for many years, it would be more than that (but probably still under £500). I do feel that going to court would likely increase those figures, but as you can see I am not trying to provoke the infringer and my approach is fair.

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Re: Plagiarism of Blog Articles

Post by AndyJ » Mon Jun 04, 2018 2:23 pm

Hi Ann,

I'm glad that you are not daunted by the idea of going to the IP small claims court if necessary. Indeed it is, as you surmise, just a matter of a few forms and a court fee (which you get back if your claim is successful) to launch a claim. Here's a link to a guide to the procedure, just in case! Note that the court will expect you to have attempted to come to some sort of settlement before starting any court action and so your planned course seems entirely sensible. If you maintain that level of determination in your correspondence with the alleged infringers it may well indicate to them that you are not afraid to carry out any threat of litigation and encourage them to resolve the issue swiftly, as going to court will undoubtedly involve them in additional cost.

If the other parties refuse to take down the material complained of within a reasonable time, and the matter then goes to court, this could well be grounds for additional damages for flagrancy.
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Re: Plagiarism of Blog Articles

Post by AnnH » Mon Jun 04, 2018 2:55 pm

Thank you Andy. The link you provided to the court process is extremely helpful, it’s a relief to find you, and this forum. I'm hopeful it won't get to court of course, I hope and suspect the vast majority do not. I will update this thread on the outcome.

May I ask another question please - do you know how long an infringed party has to bring a copyright claim? I have been reviewing some of my files this week and to my horror I discovered a (potentially fairly big) case which I started (writing a letter of notice and invoicing – sent January 2014 but was ignored by the infringer) but then had completely forgotten about due to some immediate health problems. That is over four years - yikes. The IPEC guide covers the timescales in between serving documents but I can't see any statutory limit to bringing a claim (before the point of serving the particulars to the defendant).

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Re: Plagiarism of Blog Articles

Post by AndyJ » Mon Jun 04, 2018 7:40 pm

Hi Ann,

There is no statutory limitation on when you can bring a claim for copyright infringement under civil law in England and Wales. However, the longer the delay in bringing a claim once the claimant is aware of the alleged infringement, the greater the chance of the defendant being able to rely on the equitable relief known as laches, or estoppel by acquiescence.
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Re: Plagiarism of Blog Articles

Post by AnnH » Mon Jun 04, 2018 8:14 pm

Thank you again Andy, for all of your help with this, you have been fantastic.

Regarding the points of law in your most recent reply, I found this part interesting:

“A claim of estoppel may arise when one party gives legal notice to a second party of a fact or claim, and the second party fails to challenge or refute that claim within a reasonable time. The second party may be said to have acquiesced to the claim, and thus to be estopped from later challenging it or making a counterclaim based upon the actions of the other party”

Having gone back through my file it appears I have written twice to the publishing group and I had been resolutely ignored, as had the (very reasonable) invoice. In hindsight the invoice amount was far too low, and I'm guessing I would have to work with that figure going forward if I try to refresh the claim? Anyway, I'm wondering if this means that the second party (the infringer) has in fact conceded to the claim and may lose some rights in defending it now if ‘estoppel’ is applicable. Incidentally the offending publisher (or rather, the editor of the original magazine) sent a one line apology (and wordage tantamount to admission) prior to the letters and invoice. But they were not prepared to even acknowledge my request for payment.

This case is an interesting one because I had generated photographs (and written the copy) for an advertorial - promoting the latest camera from a well-known manufacturer (for whom I was a brand ambassador at the time). I made it clear in our written agreement that this was for one print run in one episode of the magazine. I found out quite by chance that they had also run my advertorial in two other magazines, produced by that same publishing group. When I contacted him the editor told me that they had needed to fill advertising space during those months and they felt I ‘wouldn't mind’ if my content was repeatedly used. I have all the original written communications, which ceased as soon as I requested payment. I have no idea if the original editors are still there, but the case is a very straightforward one it seems.

These magazines (or rather, the publishing group) will have been paid a considerable amount of money by the camera manufacturer for this kind of advertising space, and will no doubt have gained increased sales revenue as a result of my text, photographs, and endorsement. I was paid quite a small sum for the original full spread article. This was an absolutely flagrant abuse of copyright and I'm now keen to follow it up.

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Re: Plagiarism of Blog Articles

Post by AndyJ » Mon Jun 04, 2018 9:55 pm

Hi again Ann,
What you have encountered with these publishers will no doubt strike a chord with many freelance authors and photographers, and goes to demonstrate the inequality of arms between an individual contributor and an editor representing a large publisher. They know the law on copyright but choose to bully and often exploit their position by implying, if not actually saying so, that if you make a fuss they won't take any of your future work. If you are a member of a body such as the Association of Photographers, or the NUJ, then you should alert them to your difficulties, as they have the power to highlight such practices and bring greater pressure to bear.

Turning to your specific points, I don't think the doctrine of acquiescence will tend to work in your favour in the circumstances you describe, because it generally operates in the situation where a rightsholder does nothing to assert their right in a timely fashion. The time when a form of acquiescence does work in your favour - which may be what the writer of the Wikipedia article meant - is when a defendant fails to answer a claim in court and the claimant obtains a default judgment. However this can sometimes be a Pyrrhic victory if the defendant fails to pay the damages ordered by the court and it requires additional court time to enforce judgment, only to find that in the meantime the company concerned has gone into liquidation.

As for the sum you wish to demand, that is very much a matter for you to decide based on your general experience of fees for your work. However if you were, say, to double the amount of the fee from the initial letter, you would have to be able to justify this to the court. Like any negotiation, the process of arriving at a settlement is a matter of offer and counter-offer until common ground can be found. Normally one would expect you as the claimant to start high and then lower your expectations, and for the defendant to raise his offer to approach yours, but there is nothing to say that you can't demonstrate your resolve by upping your demand, providing that the other party appreciates that you are prepared to go to the door of the court and beyond if necessary. The analogy to a game of poker is apposite. That said, you need to be aware of something called part 36 offers (a reference to Part 36 of the Civil Procedure Rules) and so called Calderbank offers. These are relatively technical issues which, if they become relevant, you may need to get some professional advice over.
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Re: Plagiarism of Blog Articles

Post by AnnH » Tue Jun 05, 2018 9:08 am

Hi Andy, Thank you again for the helpful response. You are spot on about the attitude of publishers - they did indeed raise the prospect of ‘future work’ but of course there was no future work after I made a complaint about their infringement. As you say the attitude is appalling, and it does not fall in their favour if the case proceeds to court since these infringements are flagrant. They seem to operate under the assumption that their contributors will not take action against them - and it seems a great many do not. I would say that too many photographers seem weak in that regard. Worse, some are even flattered when their work is published by a profit making business, and there is no thought to the inequality of it.

It seems that Part 36 doesn't apply to the small claims track. Although the value of this claim is higher than the previous claims I described, it would easily fall within the small claims process. Legal advice would certainly be useful particularly as this involves profits to both the publishing group and the camera manufacturer thanks to the additional exposure, sale of advertising space and my endorsements. That would be very hard for me to quantify though, and I don't know if I can even request that information, or if the court might choose to do so. As you rightly said earlier, the cost of legal advice would be prohibitive for me and I would have to proceed without it, and rely on the judgement of whoever examines the case.

The sum quoted on my initial invoice was based on what I had already been paid for the first article, and was simply multiplied by 3 to cover the other incidences of publication. It is my understanding that in the UK the infringed party cannot apply any uplift for unauthorised usage and that the aim of the process is to restore the infringed party to the same state they would have been in had licence been granted and paid for normally. In that regard there is no room for negotiation by the other side, because I have simply quoted my normal fee and that is not subject to debate by any client. My fees have however increased quite a lot since then, so I'm wondering if I could apply ‘today's prices’ when I resume contact.

If memory serves, I'm pretty sure I am a member of the AOP, and I think I did contact them about this at the time but received no reply. I will go back to see if they have a view on it.

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Re: Plagiarism of Blog Articles

Post by AnnH » Tue Jun 05, 2018 10:34 am

Edit:

I see Whois/Nominet no longer shows names of domain owner(s).

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Re: Plagiarism of Blog Articles

Post by AndyJ » Tue Jun 05, 2018 1:50 pm

Hi Ann,

On the nominet point, you can thank GDPR for the fact that these details are now being withheld.
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Re: Plagiarism of Blog Articles

Post by AnnH » Tue Jun 05, 2018 4:11 pm

Hi Andy,

Yes, I am quite surprised GDPR has extended it's tentacles to the removal of what is arguably crucial information. As a business owner I have no problem with my own details being publicly available in that way, and indeed it serves a very important purpose. How are we to now contact website owners if we need to?!

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Re: Plagiarism of Blog Articles

Post by AnnH » Wed Jun 06, 2018 8:07 am

A quick update on the two infringement cases set out in my opening post.

Both have now removed the content and have issued apologies. I am currently calculating the value of the invoices I will be sending. One of the infringers was clearly very upset at having been found out.

The other is more defensive and is insisting that my work was shared on a photography forum as a ‘free open source’. I can never quite figure out what an infringer means by that (it’s a common enough excuse), since it is clear on my website that I am the author of the work and nowhere do I grant licences for free reproduction. He seems to be suggesting that he lifted the article from a photography forum. I doubt any photography forum would have permitted any member to post a substantial article on its pages, as it could be held liable. In fact locating me as the originator of the copied work would be easy. He is claiming that the act was not deliberate.

Frankly, it would be better if infringers didn't make excuses like this, as I suspect if a matter proceeded to court a judge might take a dim view of it. I hope the person in question is sensible enough to pay the (reasonable) invoice I will be sending. I think he feels he should not be overly repremanded because he has found several other instances where my work has been reproduced. As any established photographer or writer will know, there are often dozens of infringements and we cannot deal with all of them at the same time, and action may depend on jurisdiction. The number of infringements does not dilute the nature of the offence, and each and every infringer contributes to the problem in further exposing that work to additional unauthorised usage.

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Re: Plagiarism of Blog Articles

Post by Nick Cooper » Wed Jun 06, 2018 10:06 am

AnnH wrote:
Tue Jun 05, 2018 4:11 pm
Yes, I am quite surprised GDPR has extended it's tentacles to the removal of what is arguably crucial information. As a business owner I have no problem with my own details being publicly available in that way, and indeed it serves a very important purpose. How are we to now contact website owners if we need to?!
As the owner of multiple domain names, I'm surprised by that, as well, not least because Nominet is just about the only body I've not heard from of late GDPR-wise. Having domain owner details publicly available was always an active "opt-in."

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Re: Plagiarism of Blog Articles

Post by AnnH » Wed Jun 06, 2018 10:20 am

Hi Nick

Yes, and I believe it was mandatory for any business domain to supply all of their details, and for those details to be publicly available via Whois. As far as I can remember the privacy option was for personal or non-business websites.

Still, I did manage to trace the hosting company of one of my infringers, by doing a reverse look up using one of their nameservers. It turned out that although their domain registrant is in the UK their hosting company is in America - it was easy to find the relevant form had I needed to resort to a DMCA takedown (but fortunately I did not have to in this instance).

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