Innocent infringement is not a defence, says Judge Birss QC

Even if you don't think it's forbidden, it actually is ...

These are interesting times for copyright and photography in the UK.

Following by one week his decision in Temple Islands Collection (noted in this Blog here), His Honour Judge Birss QC published his ruling in David Hoffman v Drug Abuse Resistance Education (UK) Limited [2012] EWPCC 2. 

This was an action for damages for copyright infringement, brought by photographer David Hoffman against Drug Abuse Resistance Education (DARE), a now out-of-business government-affiliated charity, which operated in schools to help young people understand the dangers of substance abuse and to provide them with life skills to tackle peer pressure in this regard.

The claimant's case was that, from about 2004, the defendant's websites used 19 photographs of various drugs. The images used were apparently copies of his copyright photographs and the defendant was using them without his permission. 

Mr Hoffman issued proceedings in November 2010, under s.16 of the Copyright Designs and Patents Act 1988 (CDPA).

DARE did not dispute that the photographs were Mr Hoffman's and that it was using them without his permission. However, at the time of the alleged infringement, DARE had employed a firm to produce a website for the charity. This, claimed the charity, had found a website sponsored by the Deparment of Health (DoH) - Talk to FRANK - on which Mr Hoffman's photographs appeared. The defendant had therefore understood that the site was covered by Crown copyright, so that the text and images could be used without seeking to obtain a licence.

However, this was not the case, as copyright in the photographs - which Judge Birss recognised as being clearly original artistic works protected under s.4 CDPA  - belonged to Mr Hoffman.

This said, DARE's position was that it had not paid Mr Hoffman because it had not intentionally or knowingly infringed his copyright and that the DoH and its misleading website were the actual cause of any infringement.

This, found Judge Birss QC, did not avoid liability for copyright infringement under s16(1)(d) and s.20 CDPA, in that:

"The fact that the defendant may have thought that it had permission to use the images is not a defence to infringement under s16. There is a form of innocence defence in copyright law provided for by s.97 of the 1988 Act … The s.97 defence would not mean that the defendant had not infringed, it would be a bar to damages.

Thus if the defendant did carry out one of the acts provided for in s16, the fact that they thought they had permission is not relevant. Although this may seem harsh, it is not. From the copyright owners point of view, the copyright is his property and his rights have been infringed if he did not give permission. Copyright law provides for other secondary acts of infringement which generally amount to dealing in infringing copies and those acts only infringe if the person knew or had reason to believe that the copies were infringing copies. However for the primary acts of infringement set out in s16, the policy of the law is that if there was in fact no permission, an infringement has occurred even if the person genuinely thought they had permission.

The key question on liability therefore is whether the defendant has committed any of the acts restricted by copyright as set out in section 16."

This being the case, Judge Birss QC found that the defendant had committed acts restricted by copyright, specifically the act of communicating the work to the public, which thereby infringed Mr Hoffman's copyright. He ordered for £10,000 in damages and £2,444.57 in interest be paid to Mr Hoffman. 

As the photographer told the British Journal of Photography, though he welcomes the result, he does not expect to receive these damages.  "My claim originally was for around three times as much [as £10,000]. This was based on the flagrancy of the abuse, the lies and threats made by the defendant and the continued infringement for a long time after I had demanded the removal of the images. However when the time came for me to make my submission to the court the defendant was already in the process of becoming insolvent and so there was no point in putting in the additional work to support a higher claim as there was no expectation that it would be paid." He added: "For years, the Department of Health has been stalling this case, pretending that they were ready to settle when they were not. They've stalled long enough for DARE to go out of business. So, now, DARE has gone insolvent."