Don’t get me wrong. My article title is not a call for action, but it is cautionary. It appears to be the season again for companies to be making use of other people’s copyright images to help promote their own goods and services. Perhaps this is indicative of organisations attempting to save costs where they can in the current climate? And whilst benefitting from an initial costs saving, they are tending to get caught out and end up paying more than they might have otherwise. This is generally because there is also a growing tendency for licence holders to maximize their own portfolio revenue streams, by aiming to ensure that use of their images is fully paid up!
What I’ve set out below is far more common than perhaps clients realise. But this article’s step-by-step guide should assist in avoiding unnecessary distractions to their business day, and those additional costs when operating in a cost-saving environment.
Common mistakes and assumptions
“If it’s on the internet, it’s in the public domain, and therefore FREE!”. No it is not…
“It’s ok, this image is ‘free to use’”. Or it may not be, if the licence is conditional…
“Not our fault. This is down to [some other third party]!”. But you are held responsible…
“We didn’t know…”. Alas, not (ever) a defence…
“Don’t worry about it – who’s going to know?”. And yet the licence-holder might…
Business owners should ensure that the material their company uses, including images on its website are indeed licensed for their particular commercial use. Unless they intend to take a calculated risk and simply use another’s images, the chances are that when it happens it will be due to an employee error, or some third party provider, such as a web design company, that will be the ones helping them to receive an infringement letter and demand for payment.
Assuming clients wish to avoid this agro, they should consider the following:
1. Who has access to the company website to make changes?
2. Who is tasked with keeping the website updated?
Whether these activities are undertaken by an employee or an external provider, not all clients understand UK copyright infringement, the consequences, and what steps they should be taking:
3. What steps and/or process do the employees follow when selecting and choosing images for the website?
4. Does the client have a relevant company policy that sets out “dos and don’ts”?
5. Does the UK client include an authorised deductions clause within its employment contracts?
6. Do the terms of business between the client and with the external provider include warranties, liability and an indemnity that specifically address infringement?
7. Does the client provide training and updates to its teams (both internal and external)?
There are a host of defences that are available when faced with alleged infringement within the UK. However, before your clients exclaim their innocence and raises its robust defence, have all the facts been disclosed and has the right to bring a claim been established at the outset by the aggrieved party? Under UK legal practice, there are rules to be followed when attempting to bring a claim/threatening a claim.
For example: Beware of fake PCNs! Knowing the difference between a Penalty Charge Notice and a Parking Charge Notice within the UK is important. One is an official parking charge notice. The other is issued by a private company, does not have statutory effect, and can often be legitimately challenged (I speak from personal experience), but is nonetheless paid by UK drivers in something around 85% of cases, simply because people generally accept liability when receiving an official looking notice. Hence why clients should exercise caution and be aware of potential scams. As you may already know, within the UK there exist fake data protection re-registration notices (companies contacted by scammers who demand higher than the standard re-registration fees who do not re-register the company in any case) and fake trade mark registration services (https://www.gov.uk/government/news/warning-misleading-invoices-dont-be-fooled), who encourage trade mark owners to pay registration fees to join a register that has no legal credibility.
Therefore clients should carefully consider the content of a copyright infringement notice to ensure it is genuine and that the aggrieved party sets out the following minimum:
1. Clear details and supporting evidence that they are the owner of the image, or they are the authorised licensee that has the right to claim infringement.
Clients should be critical of what is being claimed here, but in any case the aggrieved party is the one obliged to prove it is the copyright owner/is the authorised licensee. There may also be more than one owner to consider. Such quality of proof can vary and this is where, unless your clients have experience or are otherwise confident in assessing such proof, they may need to instruct a UK lawyer to look at this in detail. An initial cost for clients to consider.
2. When was the image created? Are the rights in the image still valid? As you will appreciate, depending on the nature of the work, and when it was first created, copyright will expire at different times.
3. Who created the image and in which country? International treaties exist that help protect against potential infringement in foreign territories. What your clients may perceive as a “foreign copyright” may still have legitimate rights in the UK. Again, clients should satisfy themselves that the aggrieved party has set out these details and has the right to claim the infringement.
4. Damages claimed, but only entitled to a fair licence fee. Beware of inflated claims! There is good UK case law in this area, and your clients should note that even if they are ‘guilty’ of the infringement they only need to pay a fair licence fee as recompense for use. They should not be fooled into forking out large sums of cash in damages!
Training staff and providing them with the correct tools is always the best first step. But clients should keep it up and provide regular refresher courses. Whilst it is considered appropriate for UK employee contracts to contain an authorised deductions clause, my view is that this should be a last resort reserved for the most stubborn of repeat offenders. A company policy / process is helpful and neatly dovetails with the training provided. It is always helpful for staff to have access to a go-to document. As for a client’s third party suppliers, clients should ensure that copyright issues are appropriately addressed in the contract. As you may know, this does not absolve a company’s actions within the UK, even if a third party provider places infringing images on a client’s website. Clients are of course solely responsible for content on their own websites. Nonetheless suitable clauses within UK law based contracts will help your clients pass on most (and sometimes all) of those costs they may be inadvertently facing.
As ever, thank you for taking the time to read this article. Please do ‘like’ if it appeals to you. Your feedback is always welcome! Feel free to make an enquiry if you think your clients have been potentially caught out within the UK…