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A Cautionary Copyright Tale

2016 January 20

[Note: this piece was first published in the January/February 2016 Outdoor Writers of Canada newsletter, Inside Outdoors.]

Copyright © 2016 Don H. Meredith, All Rights Reserved.

There is a widely held belief that whatever is posted on the World Wide Web is free for use by anyone. The thinking goes something like this: because I can download text and images to my computer, I possess them and can use those materials to make my own creations and post them on the web or otherwise publish them. As we all know (or should know), nothing could be further from the truth.

Of course, you have the right to download, view and print anything on the web to which you have the right of access, as long as it is for your own personal use. However, if you copy something (e.g., an interesting article) and send it as a PDF to a friend (for example), technically you’re breaking copyright law, unless of course you received a licence to do so from the copyright holder. (On the other hand, if you just send that friend the URL [Internet address] of the site where you got the information, you’re O.K.) Now chances are slim that a content owner would get upset about you passing some information he or she posted on the web to someone else for their personal use. But where it gets dicey, inviting legal action, is if you or the person you sent the material to decides to use all or some of it for commercial purposes, such as to illustrate an article you want to sell or post on the web, promote a business on the web (e.g., a writer’s website) or in any other way claim it as your own.

A case in point is that of a freelance marketing specialist who hired a web designer to create a website for his business (I’ve changed some details to protect identities). The designer used some of her client’s own photos but also used some from a travel website for whom the client had done some work. The new website was published and a few months later the client, who now owned the website, received a notice from a lawyer demanding $7000 for illegally using one of the images. It turned out the rights to the image were held by a photo stock agency that sold licenses for use of its images. The freelancer immediately took down the image in question and contacted the lawyer and the agency. After some negotiations, he was able to reduce the penalty to $1500, still way too much for his small business.

Now you could say that the marketing specialist should have known better, should have questioned the choices made by his website developer, and you would be right. But oversights do occur and people do make mistakes. The question in my mind is whether there was an agreement between the two that specified who would be responsible for obtaining licensing agreements for third-party materials used on the website.

You could also question the extreme penalty demanded by the stock agency. Lawyers who have defended similar cases report that the initial penalty is a scare tactic to get the person to come-to-heel. Court judgments in such copyright infringement cases have not exacted anything near what was initially asked with regard to a single infringement. As such, it is questionable the agency would take the matter to court. Some lawyers have advised in such cases that the person take the offending piece down, apologize, make a reasonable offer and, if that is not accepted, wait it out—endure the phone calls and threats—and the issue should eventually go away (the Canadian Copyright Act specifies that copyright holders have three years to take legal action after hearing of an infringement). But do you want to take the risk?

Copyright Trolls…?
As it turns out there are a few photo stock agencies that make considerable money from searching the web for illegal use of their photographs. Many of these businesses have fallen on hard times in the last few years because fewer clients are using their services. As a result they are selling the rights to photos for a lot less than they used to. And with many people believing that everything on the web is free, it’s not hard to understand why hunting down copyright infringers might fit into business models.

However, it appears that some of these businesses are using threatened litigation as the main source of income, and hence have earned the name “copyright trolls.” As described in an article on the website of the Canadian Internet Policy and Public Interest Clinic , copyright trolls “use a ‘scattershot’ approach to litigation.” They search sites for offending material and have their lawyers issue a large number of demand letters in hope a substantial number of the potential defendants will agree to a settlement rather than go to trial. “Trolls know that it is cheaper to settle than to fight, and small businesses with an eye to the bottom line will take the most cost-effect route out of the mess.”

How to Avoid “the Mess”
Obviously, the best way to avoid being targeted by copyright trolls is to ensure you do not use material to which you do not have the copyright or licence to use. But as I said before, stuff happens, especially if you’ve hired someone to create something for you, like a website. Designers often pull materials off the web, including design formats, etc., to make interesting websites. This is O.K. as long as they have obtained the right to use the material as specified in a licence agreement. Ensure you have a written agreement with the designer that specifies he will acquire the associated licences and will provide you with copies of such agreements. It’s important to get written agreements concerning your right to use material you did not create.

What if a Troll Targets Me?
Disclaimer: I am not a lawyer. The following is what I’ve gleaned from my research on the topic:

  1. Determine they are correct. Did you or someone else create the offending image/text? If the latter, do you have a licence to use it?
  2. Does the offended company/individual actually hold the copyright or have an exclusive licence to use the material? Demand to see licence agreements that show the company’s interest. Trolls sometimes don’t have a legal interest in the material and are trying to scam you.
  3. If you posted something you shouldn’t have and you’re dealing with the legitimate holder of the copyright or exclusive licence, take the offending piece down, apologize and negotiate a lower penalty. Do your research. Determine what the company charges those who license their material. Courts will often use this information as a base to assign a penalty (e.g., 2 to 5 times the licence fee). An informed negotiator should be able to get the best deal.
  4. If the negotiated penalty still seems out of line, consider ignoring the whole thing. If you are forced to go to court, you should receive a settlement lower than what’s being demanded. However, as a lawyer once advised me: “It’s always best to settle out of court. If you go to trial, logic goes out the window and anything can happen.” Of course, the other factor to consider is the legal fee if you hire a lawyer.

How do I Protect MY Content from being Used Illegally?
Whether or not you use a stock photo agency, if you yourself post photographic and other content you’ve created on the web and you don’t want people stealing it, you need to take some basic steps.

  1. Mark all your material with a copyright notice. A simple notice at the beginning of an article, such as “Copyright © 2016 Joe Writer” lets people know you are serious about protecting your rights in the piece (in Canada, you do not need to register your copyright in a piece [although you can]. The fact you are the creator is enough, as long as you can prove it). A copyright stamp or watermark on your photos (routines available in some photo-editing software) similarly notifies viewers of your rights (indeed, photo stock agencies often use watermarks in the images they display on their websites). These steps won’t stop people copying your work but they will ensure that those people who might be thinking of using your material cannot claim they did not know of your copyright.
  2. In terms of photographs/videos to be posted, dumb them down. Don’t post the images as they came from the camera! Use photo-editing software to reduce the pixel density of the photo to 72 dpi (dots/inch, the web standard) for example, and keep the size of the photo relatively small (e.g., <6” wide). Do this before you stamp or watermark your photo. Reducing pixel density makes your images useless to those who might want to use them in a larger format.
  3. Every month or so, put each of your name, title/captions and URLs of your articles/photos/videos into a search engine. Do the same with Copyscape.com. If you find an offending site, contact the owners and politely inform them they have violated your copyright. Demand they take the offending piece down and perhaps suggest a fee for its use (in cases of plagiarism, taking the piece down is the minimum they should do). If you wish to do more, you should contact a copyright lawyer. Access Copyright might be able to help you here.

Note: Social Media Sites
If you post photos and text on social media sites, such as Facebook, you have assigned certain licensing rights to the owners of those sites (check your user agreement; yes, the one few people actually read). For example, on Facebook the company can use any posting for whatever purpose they deem appropriate (e.g., advertising their services), and of course your “friends” can repost your material, where others you don’t know can see and use it as they see fit. These are usually not exclusive rights, but you should be aware of them.

Comments are always welcome (below).

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From → Copyright, The Biz

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