Someone has accused me of copyright infringement, what should I do?
If you are reading this section you have probably received an email, letter, Pre Action Protocol correspondence or court summons from a copyright holder, relating to your use of a work protected by copyright, alleging that this use is infringement. The first thing you must do is check any deadlines for response as not responding may have serious consequences.
There are a lot of factors to consider, many of which will relate to your own business and use of the image. These might include: –
Have you made use of the work under a copyright exception?
Is the work in the public domain?
If the answer to all of the above questions is no, copyright may have been infringed. You may need to take professional advice to understand your position fully.
A further question to consider is: –
Are you satisfied that the person who has contacted you has demonstrated their ownership of copyright in the work?
Common responses from those accused of copyright infringement include: –
- I found the work online, which must mean it is available to use for free
- There was no © symbol on the work, which must mean there is no copyright in it
- There are other people using the same work, which must mean that I can use it too
- I’ve stopped using the work now; surely I am not responsible for infringement?
- I am not making any money from using the work so it is all right to use it
None of these are defences that allow use of a copyright work without permission from the copyright owner in the UK. Use of a copyright work without permission is only recognised if the use falls under a copyright exception. Even if you stop using a work when you are told that it is protected by copyright, the law recognises the rights of the copyright owner during the period that you use the work for.
Even if you did not mean to infringe copyright, current UK law recognises ‘strict liability’ for infringement, which means that fault is not a requirement. There are no current plans to change these aspects of copyright law.
If you have made use of the work under a valid licence, or copyright exception, or the work is in the public domain or is not protected by copyright, then you may not have infringed the rights in the work.
Regardless of whether you have infringed copyright or not, consideration must be given to any deadlines for response to the accusation. You may wish to seek professional advice on an appropriate response to the accusation.
The first step is to be clear whether the work is protected by copyright and whether the infringing behaviour has any legal justification (e.g. under a copyright exception).
Choosing an appropriate dispute resolution mechanism depends on a number of factors. For example, you should consider the following…
In England and Wales, and Northern Ireland, parties are expected to try to resolve disputes before taking Court Action, for example by using a more informal dispute resolution mechanism.
You may wish to use a third party to assist in enforcement of your copyright, such as a solicitor, a mediator or an arbitrator.
Sometimes court action appears to be the only appropriate way to resolve a dispute. The Intellectual Property Enterprise Court Small Claims Track offers a dispute resolution option…