A reminder for schools to be alert to copyright infringement
In this article we consider how schools may inadvertently find themselves facing a claim for copyright infringement and what you should be aware of in order to avoid this.
VWV is often asked to assist school clients who have been threatened with a claim for copyright infringement. A common scenario is where a school has used an image they have found through an online search in their newsletter or on their website (or some other material circulated to parents or prospective parents) without realising the image is protected under UK copyright legislation. It is a common misconception that if an image does not have a copyright watermark on it or make clear that it is protected by copyright in some other way, it is free to use.
Copyright - the law
Copyright is a property right which subsists in (amongst other things) original literary, dramatic, musical or artistic works. There is no system of registration for UK copyright and protection arises automatically on creation. Artistic works encompass things like photographs as well as other graphic work such as paintings, drawings, diagrams, maps, charts and plans.
The general rule (subject to some exceptions in an employee/employer context where an employment contract may alter the position) is that the first owner of the copyright in an artistic work will be the author (section 11(1) Copyright, Designs, and Patents Act 1988 ("CDPA")). In the case of a photograph, that would be the photographer, or in the case of a drawing, the artist etc.
What constitutes copyright infringement?
Under section 16(1) CDPA, the owner of the copyright in a work has the exclusive right to:
- copy the work;
- issue copies of the work to the public;
- rent or lend the work to the public;
- perform, show or play the work in public;
- communicate the work to the public; and
- make an adaptation of the work or do any of the acts listed above in relation to an adaptation.
Under section 16(2) CDPA, copyright in a work is infringed by a person/organisation that, without a licence from the copyright owner does, or authorises another to do, any of the acts restricted by the copyright. Under section 16(3) CDPA, that includes doing any act restricted by the copyright in relation to the work as a whole or part of it, either directly or indirectly.
This then means that in general, schools using any qualifying copyright work without a proper licence to do so will be infringing copyright, unless the use of the work falls under an exemption relating to education.
Exemptions relating to education
Sections 32-36A CDPA deal with exemptions for the use of certain copyright works for educational purposes. These are:
- s.32 - illustration for instruction;
- s.33 - anthologies for educational use;
- s.34 - performing, playing or showing work in the course of activities of an educational establishment;
- s.35 - recording by educational establishments of broadcasts;
- s.36 - copying and use of extracts of works by educational establishments; and
- s.36A - lending of copies by educational establishments.
Generally speaking, the exemptions above cover the use of copyright works for teaching and research, but there are limitations and they tend to be construed narrowly. The example referred to above where a school uses an image obtained online in a school newsletter without a licence is unlikely to fall within these categories of exemptions relating to education.
Letters from claims companies
Claims for copyright infringement arising from the unauthorised use of photos located online and reproduced in school materials (and other organisations of course) are fairly common, so schools need to be alive to the potential risk of this and undertake investigations into copyright ownership before reproducing any photograph or other image found online.
Given the importance of protecting intellectual property rights, specialist IP claims companies and agents exist who often conduct regular image searches to see if a particular image has been used anywhere without permission. This method works particularly well for copyright owners to identify potential instances of infringement if, for example, an offending school newsletter is published publicly on the internet. Once an infringement has been identified, the claims companies will often send lengthy, templated legal letters to the infringer outlining their client's copyright in the work, detailing the infringement and demanding compensation. It is often difficult to dispute such claims where there has in fact been an infringement of copyright, notwithstanding how unintentional the infringement may be.
A note on settlement terms
Usually, the letters received from claims companies will include an offer of settlement which may have onerous terms attached to it and include provisions such as requiring the infringer to retrieve and destroy all copies of the material in which the copyrighted material has been used. Often, this would not just be impractical but also impossible - for example, if a newsletter has been distributed to hundreds of parents. In some instances, settlement terms may include what is effectively an acceptance that a higher amount will be payable if they infringe again.
Conclusion
In conclusion, it is not advisable for schools to use materials directly from the internet due to the risk of infringing copyright. Instead, schools should consider alternatives such as using their own photographs or obtaining licences to use certain material in a prescribed way or subscribing to an image database, which allows users to download and use images without the risk of infringing copyright.
If you would like to discuss any specific issue relating to copyright infringement, please contact Rhiannon Nash (Associate) or Ben Holt (Partner) in our Litigation and Disputes Resolution team who regularly advise schools on such matters.
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