Copyright Aid

Hi

I have a curious question regarding copyright of websites and screenshots.

It may seem a little obscure but am I correct in saying that a screen shot of a original and uniquely designed website or part thereof can actually be classified as copyright infringement?

If so do "copyright infringement companies" that email out requests for licenses/demands for payment with a screenshot of a webpage or part thereof (which includes written text not in anyway related to the assumed claim) are they actually distributing copywrited material? If so does it matter who the recipient of that screenshot is?

In addition to this, is there any concept under law that allows for or prohibits multiple screenshots from an owners website to be held on a server or computer of a third party without the permission of the website owner?

For instance if a copyright infringement company took multiple screenshots over a small period of time months ago and prior to a change in the website content, but is still sending frequent emails of copyright infringement claims to the website owner. What recourse in law does the website owner have to ask for all screenshots to be removed?

Hi Mango,

You won't be surprised when I say it depends ...

Assuming that the website page which is the subject of the screenshot is sufficiently original (in the copyright sense) that it attracts copyright then, yes, theoretically a screenshot which is saved may well amount to infringement by copying, unless it is made for purely personal use, such as private study or research, which is subject to a legal exception - see section 29 of the Copyright Designs and Patents Act 1988. It could be argued that taking a screenshot would constitute 'research' if it was done for the purpose of establishing a date on which some disputed content was visible on the website, so it's certainly not clear-cut. The courts have established that an image which has been consciously saved on a computer (and is not just held in the computer's cache or temporary internet files - section 28A), can amount to copying both with respect to copyright law, and also to the criminal offence of making an indecent image (contrary to section 160 of the Criminal Justice Act 1988). But I think the specific example you posed, of a claims company storing multiple screenshots, could fall within the section 29 exception, since it was not being done for commercial purposes (I appreciate this is debatable!).

Most webpages are made up of different components, such as text, images, possibly a moving graphic, etc and each of these will, potentially, constitute a separate work for copyright purposes. So to take a banal example an opening page which just consisted of the words 'Welcome to my blog' and an image, it is unlikely that these words on their own would exhibit sufficient creativity to gain copyright protection, but the image is much more likely to be protected. If the company which takes the screenshot is working on behalf of the image's copyright owner, then clearly there will be no infrigement of the image, since copyright owner will have implicitly authorised the copying of his work by the claims company. An issue might arise if there was more than one image and the copyright in the others was not owned by the same owner as the primary image. However in such circumstances it might be argued that the copying of the other images was incidental to the main purpose of capturing the use of the disputed image and so possibly section 31 CDPA might provide a defence.

And lastly, once the matter got as far as a court room, section 45 can be invoked to justify the making, copying and distribution of the screenshot. I think, in strictly legal terms, this same provision would not justify the making of the screenshot just for evidential purposes, where litigation is not actually contemplated. The second thing to consider, if a dispute of this nature ever got as far as court, is the application of section 171(3). This is a little known provision which can trump copyright protection, if the court can be persuaded that allowing this sort of use of screenshots is in the interests of public policy. I would certainly expect any advocate who was defending a claims company against a claim of copyright infringement to deploy an argument under this heading.

If this is more than just an academic question, you should consider getting proper legal advice before embarking on a crusade against a claims company, as this is a largely untested area of the law. However I hope these comments give you some food for thought.

AndyJ

Thank you for taking the time to respond to my somewhat slightly left field query and outlining the various arguments from either direction. I very much appreciate your guidance on a for now academic pondering and I have truly gorged on your reply. The "it depends" comment was not a surprise at all.

I can see how you suggest section 29 is not clear cut. The government guidance suggests when it comes to research that "This exception only applies to non-commercial research so it is very unlikely to apply to research done by a company" and on thomson reuters is suggests that "Research that is undertaken for a purpose which will have some commercial value in the future will not be considered "non-commercial" and will fall outside this exception". With the potential for revenue generated by these "copyright infringement companies" it could be as you suggest a reasonable point to argue.

Regarding section 31 and the realms of what is incidental, the actual content that is in "dispute" from the copyright infringement company is approximately 5% of a screenshot thus a substantial part not related to a disputed image was copied, saved and stored on a computer/server 6 months ago and subsequently distributed. The screenshot contains the website owners company logo & company name which is trademarked and between 3 and 10 links to other individual blog pieces each with their own headline and a section of each of the articles written text (literary copyright). Could it be argued that it is therefore not incidental and the copying is excessive for the purposes of the "copyright infringement company"?

I am struggling to understand, that a website owner asserting copyright over 95% of the remainder of a screenshot that it can be removed by section 171 (3) as what would be the public interest in removing the 95% lawfully copyrighted content by applying section 171(3) and does then not delve into HRA freedom of expression to the 95% of the screenshot content?

Sorry if my questioning appears to be angels dancing on a pinhead.

Many thanks
Mango

Hi Mango,

I fully agree with your points. There is considerable uncertainty about this, and as I mentioned it's not something that has been tested in court.

The point about section 171(3) is that screenshots are regularly used and accepted by the courts as evidence in intellectual property cases. Therefore, since there is no viable alternative, I could see the courts taking a view that the practice was necessary in the interests of justice, and thus would come within the ambit of 171(3). It has certainly been argued in other contexts that publishing copyright material without permission in order to highlight unlawful practice in the area of defamation might be permissible under 171(3), so it is but a small step to try and apply the same public policy argument to copyright infringement.

The incidental inclusion defence does not really rest on the percentage of the amount taken which is relevant for the purpose, but rather whether it was possible to avoid including the irrelvant material. So for instance if the screenshot was made using a phone camera, you would be able to zoom in on the part you were interested in, but using the standard keyboard short cut or some other software to take a screenshot doesn't usually permit just a portion of the screen to be captured. You might say the irrelevant part could be edited out later, but any editing then introduces the possbility of screenshots being faked. You mention the inclusion of trade marks. This would not amount to infringement if the mark was not being used in course of trade, since obviously the image would be a genuine example of the mark, so the buying public would not be misled by the inclusion of it in a screenshot.

As long as this remains an academic exercise, then all of these points are both interesting and moot. However I would be wary of taking forward any copyright infringement claim without a comprehensive legal opinion from a barrister to support the action.