Copyright Aid

Hi there,

Any assistance you can provide re the following queries would be much appreciated:

1. If an organisation publishes a press release containing an image which a third party alleges infringes its copyright; and the press release including the image in some cases is then published by a number of news organisations, will the organisation who originally published the press release be liable for any acts of infringement by the news organisations who publish the said infringing image? Or is the news organisations use of the image covered by the fair dealing defence provided a sufficient copyright notice is included, and is there an obligation on them to ensure they have the right to use such an image in an online article in any event.

2. Is there any defence of innocent infringement under the CDPA in England (as in Australia) e.g. where an organisation has the permission of the photographer who took the image to use it but it transpires that there is an exclusive licence agreement in place between the photographer and a stock photography agency re the image, would the organisation who had the permission of the photographer to use it be liable for copyright infringement to the stock photography agency?

Many thanks

The organisation which published the image without permission and the newspaper which subsquently republished the image would both be liable for infringement. Unless the press release explicitly said that the image could be republished (ie it contained an actual licence similar to a Creative Commons sharealike licence), the newspapers would have no defence that they thought permission was being granted. There would be no fair dealing defence for using the image for the purpose of reporting current events, as section 30(2) specifically states that photographs are excluded from this provision. It is exactly the same situation when a newspaper publishes an image without permission, and a reader of that newspaper then uses the image without permission. In this respect (and this respect only) copyright law mirrors defamation law. A newspaper which published a defamatory statement previously published by another source is liable for libel as much as the source of the libel. However unlike copyright, libel is not a matter of strict liability and there are several defences under the heading of qualified immunity which might be sufficient to defeat a libel claim.

Copyright infringement is a matter of strict liability, which means that innocent infringement is not a defence. In the circumstances which you describe in your second question, assuming that the photographer was the copyright owner (and not say his employer) then the fact that he gave permission would be sufficient to defeat a claim of infringement. This is for the simple reason that only the copyright owner can bring an infringement claim. The exclusive licensee (the stock agency) would have a claim for breach of contract against the photographer if the permission had been granted after the exclusive licence was granted. Obviuosly, if the photgrapher was an employee and his employer owned the copyright in the image he took, then he has no authority to give the permisssion so it would be valueless.

Really helpful, thank you!