Are you at risk of copyright infringement?

Here’s the thing, you’ve just opened an email or a letter where someone is accusing you of infringing copyright. It might be that you found an image using a search engine and innocently displayed it on your website or included it in your monthly newsletter and now someone is claiming you don’t have the appropriate rights or licence to do this. They’ve possibly threatened legal action and have asked for money to settle the matter.

Wait? Is this real? I’ve never heard of this company before, so how do I know it’s legitimate? 

As you may be aware, when someone creates (among other things) original literary, dramatic, musical and artistic work (including photographs, website content, documents and articles), that work is automatically afforded copyright protection. Copyright protection allows the owner to prevent others from using their work without permission (including copying it, distributing copies of it and putting it on the internet). Just because a piece of work is publicly available (such as via a search engine), it doesn’t mean that it isn’t protected by copyright. 

The owner of the copyright will usually be the creator of that work (or possibly, the employer of that creator). That said, this isn’t always the case, so it’s useful to ask for evidence of ownership to check if you’ve been contacted by the legitimate owner. It’s also possible that the owner may have instructed a third party to act on their behalf (including monitoring use of their work and approaching those who use it without permission). Any such third party should be able to provide evidence of this instruction to allow to you check if they’re acting legitimately also.

If you receive an infringement notice, you should always take legal advice in relation to it. 

What can you do to avoid copyright infringement?

Copyright can be a confusing and complex matter, but it’s important that you don’t expose yourself to copyright infringement as this could be a costly risk to your business. In particular:

  1. Don’t use work that’s not yours – from photos to articles, if you didn’t create it, don’t use it.
  2. If you do want to use work created by someone else, ask the owner for express permission (including putting in place an appropriate licence and possibly paying a licence fee).
  3. Read the terms and conditions of any such licences and check that they cover your intended use of the work (e.g. placing it on your website).
  4. If you use third parties (such as creative agencies or freelancers), make sure that you have appropriate contracts in place that transfer ownership of the copyright in any work produced by them to your business (to avoid infringing copyright which is unintentionally owned by them). These contracts should also contain infringement indemnities which will allow you to recover any losses should their work infringe third-party copyright.
  5. Under UK law, the copyright in any work created by your employees during their employment will usually be owned by your business and your contracts of employment should reiterate this (to avoid infringing copyright which is unintentionally owned by your employees).
  6. Keep updated – if you use documents provided by third parties, such as insurers, make sure you have the latest versions available.
  7. Put in a place a policy which communicates this to all employees (especially those involved in marketing) and where necessary, offer training in this.

This update is for general information purposes only and isn’t intended to constitute legal or other professional advice. It shouldn’t be relied on or treated as a substitute for advice relevant to your circumstances. If you have any questions or require any advice regarding copyright or infringement, you should speak to an intellectual property solicitor.

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