PA Media/time limit for copyright infringement claims

[IPProtection]

I don’t disagree at all Andy - you worded it more succinctly than I did.

Best,

J

[Query99]

Thanks for replying. As it turns out, the image has, at PA Media's request, been removed from my site and server.

But as it seems the clock started running again in 2020, I cannot rely on the six-year limitation (unless we are still engaging in back and forth in late 2026!)

I'll reply to your other post separately.. but unfortunately, I think you've reset the limitation timer several times - by updating the copy of the post in 2018, and definitely by migrating to a new server in late 2020. They would only have to look at the "Last Modified" date of the image to see that the date is now within the six year limitation period, and that can be done by simply opening the image URL in a browser window and typing

Code: Select all

javascript:alert(document.lastModified)

into the address bar - then, providing it's the actual image URL and not being served by a Content Management System or Content Delivery Network, you'll get a pop-up alert showing the date and time the image was last modified on your webserver.. If that's within 6 years, then they'd have a potential claim.

[Query99]

Thank you @AndyJ and @IPProtection for your replies.

I guess I will go back and politely disagree with their claims and reiterate my offer to pay the Alamy fee and reasonable admin costs. I assume they will reject that, but the ball will then be in their court to escalate things if they wish. I agree that I can't see a court agreeing to their inflated and extortionate charges.

[snapperman67]

Statue bar on copyright works differently to contractual law. Having taken on several very large media groups over images posted over 6 years ago - both IP solicitors ( I have spoken to quite a few now) and a IPEC judge instead believe that the statue bar started from the point of discovery of the infringement. My argument to the court was that search engines such as google etc only index 3.5-5% of the visible internet - usually only the page headers, 1st layers of a site or if the image has a full set of meta data. Given that most infringers strip the meta data from a file or hide the site's API, it makes discovery very difficult to almost impossible in timely manner. Given that there now approximately 5 billion web pages in existence currently and Google is now reducing the percentage of indexing - an individual creative has an almost impossible task of finding the infringement in a timely manner. This argument was originally formulated by Gwen Thomas at the Association of Photographers and every newspaper solicitor I have encountered (there are a lot) who offered the statute bar argument for a strike off of the case have backed down when I have presented this argument. At my last hearing, the judge accepted my explanation without question.

[IPProtection]

Statue bar on copyright works differently to contractual law.

Yes - copyright infringement is a tort, not a contract.

tbh - I think you were fortunate if the judge accepted your argument;
The limitation period can be postponed 'until discovery' if there is evidence of deliberate concealment - but if the infringement is on a publicly accessible website, without paywall, then it can hardly be considered to have been deliberately concealed - however long it took to discover.

Otherwise, the Pirelli General Cable Works Ltd v Oscar Faber & Ptns [1983] case could be cited where the limitation period begins at the commencement of the cause of action, not the discovery.

To my knowledge, there is no case law which has contradicted that.

Personally, it would be in my best interests, as a creator and for the enforcement of IP rights if the limitations act didn't apply to copyright infringement, so I'm not trying to stoke an argument.

If it wasn't a particularly big claim, the newspaper solicitors may have backed down after weighing up the cost of their time arguing and defending the claim but in any case, glad you were successful!

[sandman]

i was wondering if there was any update on this as I'm going through the same process with PA Media.

I have a couple of follow-up questions though.

1. I have not taken the image in question down as it was published a decade ago so I think a copyright infringement claim might be too late anyway. Would taking the image down constitute "modifying" and thus start the clock again?

2. I've been reliably informed that even if it were to go to court a worst case scenario is having to pay what they ask for plus court costs which would be £100 max. I was told I would not be liable for their legal costs. I've looked at a number of threads here and on google and while I can see people who have paid to settle I can't see any cases that actually went to court. Does anyone here know of any court cases and if so what were the outcomes?

[AndyJ]

Hi sandman and welcome,

Irrespective of whether the limitation period starts when the image is first published without permission, or when the unauthorised use of it is 'discovered' by the copyright owner, taking the image down definitiely marks an end to the infringement. If you fail to take down the image once you have been informed that its use is infringement, you run the risk of having an additional claim for flagrancy made against you, which could mean additional damages being awarded against you.

I'm not sure I fully understand your second point. Yes, you are right that in the normal course of a case the claimant will only get damages commensurate to the amount he or she has lost through not having sold a licence for you to legitimately use the work in question. The damages may not be the same amount as the sum which the copyright owner or the claims management company working on their behalf has asked you to pay to settle the matter without going to court. And in addition to the correct level of damages, if the matter went to court you would be required to pay the court costs and some reasonable expenses incurred by the claimant in attending court, such as his travel and loss of wages. The court fees include a £35 filing fee and a hearing fee. The latter is set according to the size of the claim, but realistically it would be £50 where the value of the claim is under £500. The reasonable travel costs are at the discretion of the court, and loss of earnings can only be claimed up to a maximum of £95. As you can see, these additional fees and costs could add up to around £200 or more. To which of course you need to add whatever damages may be awarded against you. So going to court is not going to be a cheap option for a defendant who is found laible for infringement, but the critical point is that it is not economical for most claimants to go to court over a relatively small amount if the licence fee they have lost was around £20 - £50 and the defendant is determined to fight the claim.

Which leads me to you last point. The only time it is beneficial for the claimant to go to court is when he can show that the licence fee would have been considerable (several hundred pounds typically), and he is pretty sure the defendent won't bother putting in a defence. Since the claimant's evidence will not be disputed the court will generally accept it and make the award of damages at the level of the claim. As for how many of these sorts of claim actually get to court, it is not possible to say because the statistics haven't been published for some years, and since the IPEC Small Claims track is the equivalent of a county court, judgments are not published.

For more background on going to court see the IPEC Small Claims Track Guide

[sandman]

Hi Andy,

Thanks for your reply, that's very helpful, I have taken the image down and (if I'm doing things right) deleted it from my library too.

With regard to my second point which wasn't clear, I think you have put my mind at rest there too. When I hear the word "court" i think of losing a case and having to pay the other side's legal fees which might run into thousands. If I understand you correctly, the scenario you have described is pretty much in line with mine, ie that the most I might have to pay on top of the claimant's claim for copyright infringement is – very roughly – another few hundred pounds. Not nice, but as they are asking for nearly £800 for an image that can be licensed for £39 I might as well fight it all the way to court.

[sandman]

I have one other small question – the picture on the PA site that they say i should have paid to use is in portrait mode. The picture I used is in landscape mode - could it be argued that they are 'different' pictures and they don't have copyright over the landscape version so I couldn't have infringed copyright in the first place?

[AndyJ]

Good try, but no. Assuming that they are fundamentally the same image then copyright exists within the substantial part of both images. I imagine that one crop is the master image and the other crop contains less pictorial information than the full original. For a look at what 'substantial part' means in this context, (and to be clear, it was a judgment which attracted a great deal of adverse criticism at the time) you may be interested in reading about what is known as the Red Bus case from 2012. This involved two similar but entirely separate images of a red London bus on Westminster Bridge, in which one image was found to infringe the copyright of the other. Red Bus case.

[snapperman67]

2 IPEC judges were recently interviewed regarding the small claims track process - they stated that they are typically 250 -300 claims a year across the country, mostly by photographers and artists. This amount is increasing due to the increase in creatives being able to file their cases easily on efile (court filing system).From a quick glance at efile this morning - I think there is close to 200 cases already filed this year.

If you want an indication to costs, flagrancy etc award, I strongly suggest you look at recent cases brought by Jonathan Webb photographer:

For example
Mr Jonathan Webb v. Newsquest Media Group Ltd (Judgement dated 10th March 2024)
It is ordered that:
1. The Defendant shall pay damages for breach in the sum of £3,801.00
2. In addition the Defendant shall pay additional damages pursuant to S 97(2) of the Copyright Designs and Patents Act 1988 in the sum of £11,403.00.3. The Defendant shall also pay the Claimant’s costs and expenses in the sum of £212.504. The total sum of damages, costs and expenses is £15,416.50 which must be paid by 4 p.m on 28 February 2024 in accordance with the Civil Procedure Rules.

There several other key cases which he has brought to the Courts which amply show that judges take an extremely dim view of infringement and can typically award uplifts of 4x -5x the amount originally claimed so as to be dissuasive

With regards to time limitation, at my recent hearing, the judge once again stated it was from the statue of limitations ran from when the copyright infringement commenced - especially given that the file name had been altered and the meta data was stripped.

[AndyJ]

Thanks for the update snapperman. I assume that the Jonathan Webb case which you cited was in the IPEC multi-track, not small claims track, since damages claims in the latter are capped at £10,000.

[sandman]

Hi Snapperman,

thanks for this info - you wrote that there ate typically 250 -300 claims a year across the country, mostly by photographers and artists and rising.

What I'm interested in is how many claims are there from companies that chase copyright infringements on behalf of photographers - looking online there are countless stories about companies such as pixy, picrights, copytrack etc who send out mass requests for payment - how many of these ever go to court?

[AndyJ]

sandman,

Just to jump in ahead of snapperman's reply, only the copyright owner can bring a claim to court, so even if the information was available, the case details would not contain 'PicRights' or 'Pixsy' etc, only the name of the photographer. There may well be photographers who use these companies to discover instances of alleged infringement and then take the matter forward themselves, but the anecdotal evidence from the IPEC judges which snapperman mentioned doesn't really help us to know the exact route to court.

And you also need to bear in mind that lodging a claim with the court does not necessarily mean that the case goes to a full hearing. The parties will be encouraged to use alternative dispute resolution methods such arbitration, and in other cases, the defendant will settle the claim as soon as they receive the claim form and know that the copyright owner is serious. If all 200 claims went all the way through to a hearing and a disposal, it would mean an average of 4 cases per week. From my experience from when the IPEC small claims court sat exclusively in London, it was more like two or three cases per month.

[snapperman67]

Hi,
Jonathan Webb claim was in the small track - District Judge Obodai took the opinion that the damages should be dissuasive. Small claims are limited £10,000 in respect to the income lost by the creative but damages are at the discretion of the judge and they can award whatever they feel is reasonable. With regards to claims companies such as Pixsy, they cannot bring claims in the UK courts. If a claim was commenced, it would be in the name of the creative with a solicitor named as the correspondent in the action. I am not aware of any Pixsy claims that have gone through the courts in the UK in the last 10 years - the US is very different.
With regards to hearings, most cases are settled out of Court but there is an increase (from verbal feedback) of more defendants being unwilling to negotiate and hearings being required.In virtually all cases this gone poorly for the defendant - for example a recent Jonathan Webb case where an infringer used 2 pictures for a Facebook page
1. MR JONATHAN WEBB Claimant
- and -
1. Blue Horizon Group Ltd, 2. MR ANDREW TAYLOR Defendant
ORDER
Upon hearing the Claimant in person and the Second Defendant in person and on behalf of the
First Defendant
It is ordered that:
1. There be judgment for the Claimant in the total sum of £3,369.92 (comprising £2,412.00 in
damages and £957.92 in interest).
2. The Defendants must pay the Claimant's costs of the action in the sum of £672.17.
3. The total sum payable in (1) and (2) is £4,042.09.

Please note that in the case of small companies, with 3 or less directors, the individual directors can be named as co-defendants to the company. With regards to arbitration, most judges don't proceed down this route any more and proceed directly to a hearing.