Copyright Aid

Hi everyone

Our small UK educational charity is yet another victim of Pixsy Inc.. Standard story: allegation of copyright infringement due to no attribution of a photo taken from Wikimedia Commons, available under a Creative Commons BY-SA 3.0 licence. Photo taken down immediately on notification. Usual back-and-forth by email including a counter offer that has been rejected. This forum has been incredibly useful in our negotiations with Pixsy. Thanks so much to everyone!

But we've now reached the stage where their next move is likely to be the threat to escalate to an attorney. The original demand for just under £500 has been reduced by 25% but no further. I appreciate that it is the copyright owner who is the Claimant in any court proceedings, not Pixsy, despite their misleading threats. Before I commit to a reply that might trigger that course of action, which will of course make it very clear that I know the legal position and will defend vigorously, may I check a couple of things with those who know far more than me?

Pixsy, though they don't say so explicitly in their threatening letters, presumably base their allegation on Sections 4(a) and 4(c) of the licence (the requirements to attribute with the URL of the licence and the name of the photographer), and, crucially, Section 7(a), that the licence and rights terminate automatically on breach. They effectively argue in their emails that 7(a) applies from the date when the image was published on our website. They therefore "offer", as the photographer's agent, a retrospective licence provided by Pixsy.

I appreciate that the IPEC Small Claims track does not publish its rulings, but to anyone's knowledge, has this legal argument, particularly the timing of the alleged breach if it was unintentional and accidental and not deliberate, ever been tested in court? In other words, could we argue that the breach occurred on notification by Pixsy, not on publication?

Secondly, has the court ever commented or ruled on Pixsy's threatening and misleading letters or on similar exploitation of this well-known loophole in CC licences? Are there other cases like Media CAT Ltd v Adams & Ors [2011] where the court has indicated its displeasure at such threats by similar companies? Given that Pixsy is not the Claimant, is it difficult to introduce Pixsy's misleading and threatening letters and behaviour in evidence for the defence?

Finally, can anyone confirm that failure to attribute is not a copyright infringement, subject to strict liability, but a matter of moral rights? I'm unclear too on what the limits are, if any, on how much the IPEC Small Claims court can award with regard to moral rights and what viable defences might be, such as evidence of little traffic to the website thus limited loss of recognition has occurred - can anyone help please?

Sorry, that ended up being more questions than I'd intended. Thanks again to everyone who has shared their knowledge and experience.

Hi Julian and welcome to the forum.

Yes under the terms of the CC licence paragraph 7a, it is correct that the point at which the breach occurs is when an image is first posted (published) without the stipulated credit. But that then becomes a matter of contract law, rather than copyright law.

As you say, the small claims track of IPEC don't publish their judgments, and so I can't say if the subject has ever been looked at in the last 11 years of the existence of the IPEC. I am not aware of any case. As for the wider issue of the activities of the claims management companies, I don't think the courts have expressed a view on their operations. Unlike the Media CAT case, Pixsy (or any of the others) would not be a party to the case if it went to court and so their involvement in the prior stages would not be central to the case. The claimant would probably be advised by his solicitor to moderate the amount of his damages claim to something more realistic before issuing the claim through the court.

And on the subject of damages, the difficult part is how to assess the loss (if any) which the claimant has suffered due to the breach of the terms. He/She hasn't lost financially, or at least not directly, since the image was being offered for free. The claimant would thus have to convince the court that they had lost out indirectly by not having thier work correctly identified. I think it would be hard to make a convincing argument that a single instance of a lack of a credit had any measurable effect of the claimant's profile or prospects for gaining new clients etc. And against any invocation of the CC terms you need to set the organisation's own stance on the matter. This is laid out in their Enforcement Principles. Note in particular what they say in section 3 of the dcoument.

And looking at you last question, the Copyright Designs and Patents Act spells out clearly (see section 103) that a breach of an author's moral rights is a breach of statutory duty owed to the person entitled to the right. As the rest of the section goes on to say, the court has discretion about what remedy(ies) is appropriate. Monetary damages are not necessarily the first option (see footnote). Since the object of the exercise is to put the claimant back in the position they would have been in had the breach not occurred, an apology and rectification of the omission would be a far more practical solution, since the claimant would get, albeit late, what they wanted in the first place. Seeking monetary damages could arguably have a negative effect on the reputation of the photographer and possibly lead to fewer commissions once people became aware of his/her apparent motives.

Footnote.
1. Perhaps the nearest comparator is the tort of defamation. Someone who is defamed may be entitled to monetary damages for injured feelings resulting from damage to their reputation. Thus the idea of monetary damages for hurt feelings is not completely out of the question where it is a straightforward matter of a reputed author not being credited for his work. This was the outcome in a similar 2005 case in India known as Sehgal v Union of India, although that was a case about mistreatment of the work rather than the lack of a credit. However I think that in the matter we are discussing, the fact that the work was being offered for free might reduce the potential damage to reputation, and hence call into question the appropriateness of any monetary award in such circumstances.

Hi Andy

Thanks so much for your considerd and detailed reply. It's really helpful.

I'm interested in your statement "Since the object of the exercise is to put the claimant back in the position they would have been in had the breach not occurred...". You've made the same point in many other threads here, so I wondered if this fundamental expression of the intent of the court has ever been formally expressed and where (so I could perhaps make reference to it, if needed)?

Also, just to make sure I've got it clear in my head, is there any limit on damages for the moral rights issue of attribution failure in the IPEC SC track, in the same way that costs are capped? I appreciate your thoughts on the difficulty of assessing any damages, but it would be nice to know if there were any limits.

Thanks again.

Julian

Hi Julian,

Your first question had me scratching my head. The principle is so axiomatic to civil law claims that it would rarely be stated in a court judgment, rather in the same way that everyone connected to the law knows that the standard of proof in civil matters is the balance of probabilities, so it literally 'goes without saying'. This principle was stated in a House of Lords judgment as far back as 1880 (see Livingstone v Rawyard Coal Co [1880]). For a more up to date statement of the principle I will direct you to this article which gives a brief overview: Legal Remedies. I haven't been able to immediately think of a really recent judgment in which the principle is explicitly stated. The best I can do is point to one from 1975 called General Tire and Rubber Co v Firestone Tyre and Rubber Company Ltd. Scroll down to paragraph 10 of Lord Wilberforce's speech, just where the article begins to fade out.

As for your second question, the limit to damages in the IPEC Small claims court is £10,000. This limit applies irrespective of whether the issue concerns moral rights or copyright infringement. Since legal costs are not normally admissible in the small claims track, this limit is for the total of damages, be they compensatory or exemplary. Exemplary damages would very rarely have been considered under the law of England and Wales in Intellectual Property cases prior to 2004, but the introduction of the European Union Directive on the Enforcement of Intellectual Property Rights and the use of the word 'dissuasive' in Article 3(2), has led to section 97(2) CDPA being invoked in a few copyright cases to obtain additional damages. However a section 97(2) claim would need to be backed up by substantial evidence of flagrancy, and I have not come across a case in which additional damages were sought for infringement of moral rights - such cases are pretty rare anyway.

That's really clear Andy, many thanks! You're a star!

I'll try to keep you posted as and when Pixsy respond.

Cheers

Julian