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 another 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 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.
Under section 16(1) CDPA, the owner of the copyright in a work has the exclusive right to:
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.
The legislation does set out some specific exemptions for the use of certain copyright works for educational purposes. Generally speaking, the exemptions 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.
Claims for copyright infringement arising from the unauthorised use of photos located online and reproduced in school materials (and other organisations of course) are 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 and 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.
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.
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 Lewis on 07384 813 072 or Ben Holt on 07715 048 666 in our litigation and disputes resolution team who regularly advise schools on such matters.