What to do when your copyright is infringed?
FREELANCE organiser John Toner was the star guest at a packed London Freelance Branch meeting on 14 July. They had come to hear him describe things you can do when someone uses your work without permission, and without the use being covered by an "exception". Mike Holderness gave the meeting an update on recent changes to copyright law, which included a definition of those: see here.
John Toner explains
This is, in part, the story of an NUJ victory. Back in 1999 the government changed the rules of procedure for the courts so that the Small Claims Court would no longer hear "copyright cases". This was a serious deterrent to people enforcing their copyright, because frequently the compensation sought would be £100 or £200 for an image or a short article - but court costs for pursuing it would be thousands.
So John and Mike Holderness sat in the Freelance Office one day in 2005 wondering what to say to one of the many government reviews, and came up with a plan for a Small Copyright Claims Court, sitting in four places around the country. In October 2012 it finally came into existence, though sitting only in London. It almost immediately changed its name to the Intellectual Property and Enterprise Small Claims Court (henceforth "the SCC").
So how have members fared using it?
The first claim taken with the union's support was against a hotel that had used a photographer's images without permission. The photographer obviously wanted several thousand pounds. The hotel offered £350. "We issued proceedings," John reported "and they settled out of court. This was a great relief to the photographer, avoiding the cost of a trip to London to present his case. The NUJ's proposal for regional courts was sound.
In another case the member accepted mediation before going to court "and settled, " John says, "satisfactorily". The procedure for applying to the SCC encourages this.
A third case was also settled when proceedings were issued.
Only one case has ended up with a full hearing. The company against which the claim was made resisted strongly, but paid up immediately following judgement and said "we'd like to go on using your footage - can we talk about a licence?" That would be, John noted "the best possible outcome".
There are some myths about copyright infringement. One is that it can make you rich. The court will generally only offer compensation - what the company would have paid for your work, were it to have negotiated properly. It can award additional damages, but it seems these are an exception at present.
Another myth is that the SCC acts as a sort of arbitration service and you will always get something. That is not the case.
What are the proceedings like? The degree of informality varies from one judge to another. John has sat around a table with one judge in a "vanilla" Small Claims Court having more of a discussion than a trial. Another judge asked the member to go into the witness box and "swear in", even though the other side had not turned up.
This court is more demanding than the "vanilla" Small Claims Courts - the one you would use to enforce payment of a clearly agreed day's sub-editing work, for example. The "Particulars of Claim" documentation must be precise and complete. The deadlines must be observed. If you have 14 days to respond to something and do so on the fifteenth day, you will lose your claim.
John advises accepting mediation: if the other side rejects it, that shows the judge that you are reasonable and the other is less so.
If an NUJ member wants the union's support bringing a case, you should approach the Freelance Office with a concice summary of your case before doing anything else. The Freelance Office will take advice on the strength of your claim. It will offer support if it's strong: "the last thing we want is for any member to have the utterly dismal experience of going into court and coming out having lost and having to pay court fees," John says. If your case is less clear-cut and you want to pursue it anyway, it's not difficult for an organised journalist to do that.
A member asked whether we should make reference to the Berne Convention - the international law governing copyright - when chasing up payment, on our invoices or so on. No: the Copyright Designs and Patents Act is the UK law that applies, and the government says it implements the Convention in UK law.
Another member asked: if your're on the night news desk and there's been a death, what's the position with reproducing people's tribute Tweets? Mike said "that's an interesting question - as the lawyer said while booking an expensive holiday in anticipation of an interesting fee. There is a court judgement that texts as short as Tweets may be subject to copyright: a collection of them certainly is (see www.londonfreelance.org/fl/1108copy.html). But then there's the "exception" allowing quotation "for the purposes of reporting news an current affairs". Practically, the key thing is to get the quotes right and to credit them properly. (It helps not to be working for the Daily Mail, probably the context in which people are most likely to object to being quoted.)
A photographer told the meeting of their experience, which ended in settling the case out of court. "The whole process is designed for an individual to come forward without a lawyer - but it still needs a huge amount of diligent work following the legalities." This member also asked about registering your copyright in the US. We will be producing advice on this as soon as possible.