Buying 'copyright free' content that wasn't actually copyright free.

[Fatty]

The above makes for interesting reading. here are a couple of points to consider.

As Andy J mentioned, Agency law is very complex and if the copyright holder previously had a relationship with the photo agent then its quite possible that the licence to you was valid and the copyright holders claim is just against the agent.

If on the other hand the agency has no relationship with the copyright holder then I should point out that Secondary Infringement does not apply to communications to the public, thus you could be liable to the copyright holder for publishing the image on your website or social media.

I am assuming that you have paid money to a genuine photo agent. If that's the case I would not be too worried as although you may be liable in the above circumstances, it would be a straight forward claim against the agent to recover your loss. In practice, most reputable agents would settle with the claimant out of court and quickly.

Where you would need to be concerned is where you obtained the image from a website that is not a photo agent which is the case of some of the free photo websites. In those cases the photo website could claim a mere conduit or safe harbour defence , ie they would say they are just a hosting platform and do not control what is on the platform. Under those circumstances you would have to recover any loss from the person who uploaded the photo to the free photo website and you may not be able to discover their identity. Its for that reason that I always recommend paying for images and only buy from a real business with a bricks and mortar address in a country with a stable legal system. I recommend against using images from free photo websites.

There is always a real possibility that an agent or free photo website has obtained and distributed works without the copyright holders consent. Just think of the case of Morel v AFP & Getty. Its also not unknown for dubious persons to upload infringing copies to free photo websites in the (wrong) hope they can use the photos themselves and say they got them from the free photo website. At least when buying from a genuine agent you can recover your losses.

[AndyJ]

... I should point out that Secondary Infringement does not apply to communications to the public, thus you could be liable to the copyright holder for publishing the image on your website or social media.

Wow fatty,

You're having a busy afternoon!

However with regard to the quote above, while I can see why you think that the OPs hypthetical example might amount to communication to the public if he used it on his website, I don't think that is the only interpretation. To be fair he didn't really explain what use he was talking about, but since he kept referring to making profits from using the image, I interpreted his explanation to be more in terms of a physical item he was selling which had the image on it. If this was the scenario it would involve the distribution right but not the communication right.

Obviously you were referring to the communication right as set out in section 20 (2)(b): "(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them." which was added to the original CDPA as a consequence of the original EU Information Society Directive 2001/29 EC.

As you are aware, Section 23 CDPA to which I was referring in my earlier answers, has not been amended since 1988 and so unsurprisingly it takes no account of ecommerce and the internet (or at least the world wide web part of it). The reason it was not also amended directly by the EU Directive is that EU copyright law does not recognise secondary infringement as a thing. We cannot know why Parliament nevertheless chose not to amend this section to specifically exclude communication to the public, when they did amend the next section (section 24) to do just that.

So while Section 23 does not explicitly refer to acts of communication to the public, sub-sections (c) and (d) most certainly do cover the distribution of infringing copies:

(c) in the course of a business exhibits in public or distributes, or
(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

.

I would be interested to hear of any caselaw you know of which supports your assertion that section 23 does not apply to communication to the public, since the black letter law itself is neutral on this point.

[Fatty]

I can't provide case law as I know of no case where secondary infringement was used as a Defence for a breach of section 20,comunication to the public, however I can quote L Bentley ,Intellectual Property Law, 4th Edition - page 219 "Secondary Infringement does not apply to communications to the public".

[AndyJ]

Hi Fatty,

Thanks for that. I only have the third edition of Bently and on page 197 he makes a similar statement but only in respect of section 24, which deals with transmitting an infringing work, for instance by fax. As I mentioned, the communication to the public bit in section 24 was added in response to the EU InfoSoc directive, and so it seems strange that section 23 was not also amended at the same time if it was Parliament's intention that the making available right should not apply in all cases of secondary infringement.

The main authorities, Copinger and Skone James, and Laddie, Prescott and Vittoria, don't mention the subject of communication to the public and secondary infringement, other than in the specific context of section 24.

On that basis I would keep an open mind about this, especially as going forward, I suspect that the UK courts will be less inclined to follow new caselaw emanating from the CJEU where it runs counter to existing UK law.