UK Update: Copyright infringement: dispelling the myths and rumours – Part 1

Online copyright infringement can often seem like a bit of a minefield. This is particularly true when it comes to identifying what images you can and can’t use on your website.

It is often thought that just because an image is publicly available through an online search engine (such as Google) it is free to use. However, original artistic works, including photographs, benefit from copyright protection under the Copyright, Designs and Patents Act 1988 (the “1988 Act”). This means that if you use such images on your website without permission from the copyright holder, you could find yourself on the receiving end of a substantial damages claim for the period of unauthorised use.

Although the penalties for copyright infringement can be high, it is a risk which can easily be avoided. In this series of blogs, we will take a look at some of the more common misconceptions surrounding online copyright infringement, together with the practical steps that your business can take to ensure that you stay on the right side of the law in this area.

“The image was uploaded to our website by a website designer, so surely I am not liable?”

That is wrong. Although the imagery may have been uploaded by a website designer or any third party, ultimate responsibility for ensuring that the rights to use the imagery have been obtained lies with the website owner. This is because the website owner is the party who has communicated the copyright protected work to the public in terms of the 1988 Act. Should it transpire that the images provided by your website designer are not appropriately licensed, this may place your designer in breach of warranty depending on the contractual arrangements you have in place. However, this will not affect liability for copyright infringement.

If you are concerned that your website contains images which are not properly licensed for your use, your website designer should be able to provide you with copies of the licences it purchased for your website. You must cover this off in any website design contract.

“The image doesn’t contain a watermark. Is it protected by copyright?”

Watermarks or the “©” symbol are not required for the purposes of copyright protection. Under the 1988 Act, copyright arises automatically at the moment an original, artistic work, such as a photograph, is created. As such, finding an image without a watermark does not mean that the image is not protected by copyright.

“I found the image on Google Images. Does this mean I am free to use it?”

A common misconception is that if an image is accessible through Google Images, it must be free to use. Google is a search engine that finds content based on your search parameters. It is not itself an image licensing company, in the same way that “Google Images” is not a collection of images in which Google has rights. The copyright in the images shown in a Google search is ultimately held by the person who created the photographs or any person / company to whom the copyright has subsequently been transferred.

“I’ve used images from a “Google search”. Will I ever be caught by the copyright owner?”

As the internet is so vast, many assume that the chances of being caught out for copyright infringement are miniscule.  However, this is not the case. These days, copyright compliance agencies such as PicRights and Pixray work directly with image libraries, photographers and other rights holders to track down cases of online copyright infringement. This is often done through use of sophisticated digital fingerprinting technology, which matches the imagery on your website with imagery owned by the relevant rights holder in an online trawl.

Once an infringement has been identified, rights holders will have the option of requesting that the infringing imagery be removed from your website, together with payment of compensation covering the period of unauthorised use. Where a settlement cannot be agreed, the matter can be escalated to solicitors and, in some cases, to the courts. Pulling an image from Google without permission from the relevant rights holder can therefore be very costly mistake indeed.

We are busy acting for copyright holders in managing infringement claims for them as well as ensuring clients avoid getting into such situations in the first place. If you would like more information on any of the issues covered in this article or any other aspect of intellectual property law please get in touch.

In the next article in this short series we will consider some of the defences to copyright infringement and, in particular, common misconceptions surrounding fair dealing under the 1988 Act.

Part 2 click here

Part 3 click here

By James McFarlane & Megan Briggs  Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.