Wednesday, 4 February 2009

Copyright extortion

I've spoken recently to a couple of clients who have received demands from picture agencies, having placed copyright images on their web sites. On the face of it, there is nothing to be said against a picture agency - or any other copyright owner - enforcing their rights, but the way it is being done has certainly created controversy. There's a whole web site here dedicated to the way that the Getty image library goes about dealing with infringe rs.

At the same time, there is another controversy about the way that alleged file-sharers are being pursued by a London firm of solicitors. They have been sending out letters, having obtained names and addresses from ISPs who have been required to hand over the information by a court order, offering to settle for £500 - a figure which is bound to go up if the initial offer is not accepted. The trouble is that the accusations of infringement have been levelled against some pretty unlikely people, who have been understandably indignant. Which?, the organisation formerly known as the Consumers' Association (under which name we all knew what it was), has taken the matter to the Solicitors' Regulatory Authority, although it does look as if the problem is more to do with the quality of IP address data than misconceived attempts to recover compensation, and that's a shortcoming that will probably be overcome with time.

At least what's happening there is grounded in copyright infringement. What the picture agencies seem to be doing is finding (through the agency of a webspider) websites using its copyright images, then issuing an invoice for the fee it would have charged had it been asked. That means that any legal action is not going to be a high court claim, but a small claims court action for an unpaid bill, which is cheaper and easier and more likely to produce the desired result. I imagine that summary judgment would often be given, if these cases came to court at all - which I also imagine they don't.

If a user of an image was sued for copyright infringement, they might have a defence against a claim for damages on the basis that they were innocent infringers - section 97(1) of the Copyright, Designs and Patents Act. But this requires them to show that they did not know, and had no reason to believe, that copyright subsisted in the work. Given that copyright arises automatically, that defence would seem to require ignorance of the copyright system: it would not suffice to argue that there is no watermark or other indication of copyright ownership. In the States, it's probably important that few photographers will have bothered to register, and damages claims will therefore be restricted (to actual damages, and no legal costs): we, like the rest of the world, have no registration requirements, so the absence of any sort of copyright claim is unlikely to assist the infringer.

It's a big enough issue for there to be a whole website dedicated to Getty's settlement letter here, and links from that helpful (but American) site to many other sources, some in this country. I'm interested to see whether any of the threats are ever followed through in the courts. Recipients of the letters tend to refer to "extortion", although strictly speaking that's probably not accurate: "bullying" seems to be an appropriate word, and I'm grateful to one of my clients for pointing out that it is an offence under Section 40 of the Administration of Justice Act 1970 and Section 1 of the Malicious Communications Act 1988 to harass debtors with a view to obtaining payment including the issue of letters which convey a threat or false information with intent to cause distress or anxiety. That might resonate with recipents of these letters - but it wouldn't help with threats of proceedings for infringement of copyright (and of course there's no groundless threats action in copyright law - perhaps it's time to introduce one).

There is no need to pick images up from other places on the Web. Most people have the necessary equipment to create their own digital images these days, and for better results could no doubt hire a professional photographer to produce a unique image for their website at much lower cost than settling the demands of a photo library. Anyone incorporating images in a website (and that includes anyone hiring a cheap, perhaps overseas, website designer to do it for them, perhaps with little knowledge and no appreciation of copyright) needs to be very careful, do some due diligence, and consider getting original artwork created.

And rather than assuming that images on the Internet are free to use, perhaps assume that the copyright belongs to one of the large agencies!

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