Copyright eBook: Mistake # 8

The eighth mistake people make about copyright is to assume that the internet is a free for all and that normal rules of copyright do not apply.

If you have a website, take care what you copy from other sites. Often newcomers to the internet freely copy and paste from other websites, whether there is a copyright notice on the site or not, but particularly if there is no copyright notice because they assume they can use any work they like on the internet, or that the lack of a copyright notice means that the work is in the public domain.

Real life case 12

In a recent case (Polydor & others v Brown [2006]) some record companies applied to the court for what is called ‘summary judgment' against Brown.  Brown had connected a computer containing more than 400 audio files to the internet and made those files available to all users of a particular type of peer-to-peer software on a certain network. 

Brown admitted use of the peer-to-peer software but said he was unaware that by using it he was distributing music.   The court held that Brown had infringed copyright law, and gave summary judgment in favour of the record companies.  It was immaterial whether Brown knew or had reason to believe that what he was doing was an infringement.  Innocence or ignorance is no defence in the eyes of the law. 

Summary judgment means that the court enters a judgment against you without a trial.  It generally does so if it thinks  you have no real prospect of success if the case was tried.  I imagine it would be fairly unpleasant to be on the receiving end of such proceedings.

So, beware!  Websites are no different to other media -  text, images, and sound will all enjoy copyright protection, whether there is a copyright notice on the site or not. The use of copyright material is one of the most common mistakes in web publishing.

Electronic equipment such as scanners, audio cards and video capture cards allow the copying and altering of audio, sound, text and images that are frequently subject to copyright law. Before availing yourself of these technologies, it is best practice to assume all material has copyright and to seek permission from the copyright owners of the works.

Real life case 13

In another recent case, (Union des Associations Europeennes de Football v Briscom [2006]) Briscom fell foul of the law.  The Union of Football Associations successfully applied for summary judgment against Briscomb who was disseminating broadcasts of live football matches in the League on its website for viewing by its subscribers.  

Best practice

If you want to take material from a site, one tip is to look at the site's terms of use.  Read the terms to see what permissions are given, and whether you are allowed to do what you propose with the material from that site.  If that does not answer your query, then contact the site owner to find out whether you may use the content in question.  You may well find that others are quite agreeable to allowing you to use their content, but it is important to ask.  In this way you will help yourself avoid costly legal exposure.

However, do remember to ask where they got the content from, to satisfy yourself that they have the right to give you permission to use the material.  For example, if a copywriter produced the entire text for them, then the copywriter will own the copyright, and is the appropriate person to approach.  Alternatively, the copywriter may be joint owner of the copyright, in which case both the site owner and the copywriter would need to give you consent to use the material.  So, thorough checking is crucial.

For a work to be in public use on the internet, the author must have explicitly granted it to public domain. If a work is in the public domain, everybody can use it without giving credit to the owner.  

Creative Commons

Creative commons licences are sometimes used by people when publishing on the web.  These licences specify what you may or may not do with the works, and the idea behind them is to allow certain categories of people to use and further develop the underlying material for certain purposes provided they give credit to the original source. 

A case (Curry v Audax [2006]) which recently touched on creative commons, involved a Dutch magazine, ‘Weekend', who illustrated an article with photographs taken from the photographer"s Flickr public website.  As is usual on flikr, the photographs were published under a creative commons license which did not permit commercial re-use, and there was a link to this license on the webpage.

The photographer, Adam Curry, sued Weekend's publishers, Audax, for copyright infringement in the Netherlands. 

Audax argued that it was misled by the flickr notice which says "this photo is public".  They also argued that the link to the copyright commons license was not obvious, and that Weekend had assumed in good faith that no authorization from Curry was needed.   A further argument that Weekend put forward in its defense was that Curry had not incurred any damages by the publication of the photos in Weekend, since the photos were freely available to the public on flickr.  The Court rejected Weekend's defense, saying

"In principle, Curry owns the copyright in the four photos, and the photos... are subject to the [creative commons] license.  Therefore, Audax should observe the conditions that control the use by third parties of the photos...... The Court understands that Audax was misled by the notice " This photo is public" (and therefore did not take note of the conditions of the license).  However, it may be expected from a professional party like Audax that it conduct a thorough and precise examination before publishing in Weekend photos originating from the internet.  Had it conducted such an investigation, Audax would have clicked on the symbol accompanying the notice "some rights reserved" and encountered the (short version of) the license.  In case of doubt as to the applicability and the contents of the license, it should have requested authorization for publication from the copyright holder of the photos (Curry).  Audax has failed to perform such a detailed investigation, and has assumed too easily that publication of the photos was allowed.  Audax has not observed the conditions stated in the license [...]..."

Note that this case, though mentioning the terms of the license, started from the position that the photograph was a work protected by standard copyright and that"s where the protection against commercial use of it stemmed from.  So, the real test of creative commons licenses will be when the exceptions that they attempt to impose are put before the courts (1).

Note of warning

It is worth noting that works may have been put on the internet in other countries without infringing copyright there, but the material can remain illegal to use in the UK.

Also, it is particularly important for anyone who is creating copyright material for others to have a clear understanding of what they may or may not use from websites. 

Real life case 14

In one case the applicant for summary judgment was a prospective website owner, Antiquesportfolio, who was in the process of launching a website to sell antiques online.  In producing the website, brochures and other designs for Antiquesportfolio, the web design company, Rodney Fitch, used photos of antiques contained in a well known antiques encyclopaedia. The website in particular contained small scale copies of photos of antiques to form icons and banners. 

Antiquesportfolio issued proceedings asking for its money back from Rodney Fitch because the material used on their site infringed third party copyright.  This exposed them to an action for copyright infringement by the copyright owner of the photos. 

The court held that it was immaterial that the photographs on the website were small scale copies, because they were nevertheless complete copies, and therefore infringements. 

In ordering the return of monies to Antiquesportfolio the court implied a term in the agreement between the two that Rodney Fitch would use reasonable skill and care not to knowingly use material that infringed a party's rights.  Alternatively, Rodney Fitch had an implied obligation to supply design material that was fit for its purpose.

I was recently involved in a case where a book featured infringing material.  As soon as it was published, the copyright infringement came to light when the website owner whose site had been copied contacted the publisher.  The author had simply assumed that it was acceptable to copy from websites. 

So, in conclusion, remember that the internet is no different to other media as regards copyright matters.

(1) Curry v Audax (2006), as reported by Jeremy Phillips in his IPKat blog.