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Pixsy Demand - Again!

Posted: Fri Dec 31, 2021 12:04 am
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!

Re: Pixsy Demand - Again!

Posted: Fri Dec 31, 2021 8:46 am
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.

Re: Pixsy Demand - Again!

Posted: Fri Dec 31, 2021 12:03 pm
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!

Re: Pixsy Demand - Again!

Posted: Fri Dec 31, 2021 2:25 pm
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.

Re: Pixsy Demand - Again!

Posted: Fri Dec 31, 2021 3:09 pm
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.