22 September 2015

The High Cost of Copying in Buttershaw: Absolute Lofts v Artisan Home Improvements

Author Ordnance Survey
Source Wikipedia
Crown Copyright and Database Right

On 14 Sept 2015 a Buttershaw builder was ordered to pay £6,300 in damages to a London loft conversion company for downloading images of the London company's loft conversions from its website and posting them to his own (see Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd and Another [2015] EWHC 2608 (IPEC)).

The parties were not competitors as they were separated by 200 miles of clogged motorway and the only loss that the claimant had suffered was a notional licence fee of £300 for the use of the pictures but the judge awarded the London company additional damages of £6,000 under art 13 (1) of Directive 2004/48/EC on the enforcement of intellectual property rights. His Honour made that award to take account of the defendant company's profits as a result of the infringement which he regarded as "unfair" and also to dissuade others from doing the same. I discussed the case in my case note
Damages for infringing Copyright in Photographs - Absolute Lofts v Artisan Home Improvements 22 Sept 2015 NIPC Law.

The judge made the award because art 13 (1) of the Directive comes into play when an infringer knowingly, or has reasonable grounds to know, that he or she is engaging in infringing material.  In this case there was an aggravating factor in that the defendants were misrepresenting the London company's handiwork as their own but that article can apply in any other case where the defendant knows he is copying without permission or copies anyway whether he or she has permission or not.

There is a widespread myth that if something is on the internet it must be free for anyone to use. Thus photos, videos and text including company's terms and conditions are downloaded and recycled with gay abandon. The number of times that clients have told me this week that their neatly drawn up terms of business have been lifted from a company in the same industry (sometimes even a competitor) does not bear thinking about. It has always been wrong to copy and now it is dangerous because the small claims track of the Intellectual Property Enterprise Court with its fixed costs makes it possible for copyright holders to pursue pirates at minimal cost and risk to themselves.

There is in truth a lot of stuff on the internet that is free to share or use under Creative Commons and other licences but check first.  Most but by no means all of the material on Wikipedia is free to use but click the image first and read the notes that appear on the Wikipedia Commons page. Usually you have to attribute the author and copyright owner and there are nearly always restrictions on use. Very much the same applies to clip art and other material. If in doubt ask the copyright owner for permission to use the material and if he or she says "no" then take your own photo or get a lawyer to draft your own terms. The few hundred pounds a professional will charge you is a fraction of the cost of litigation.

If you are accused of copying then remove the infringing material at once and apologize profusely. If the complainant wants money then take legal advice as a matter of urgency. Don't ignore the demand or you may find yourself in court with sky high costs and court fees.

Similarly, if you think your image, text or other work has been ripped off take legal advice before doing a thing. Some countries like Australia provide threats actions for unjustifiable threats of copyright infringement.

If you want to discuss this article call me during office hours on 01484 599090 or 020 7404 5252 or use my contact form.