Small claims triumph as aerial photographer routs flagrant infringers

There's so much doom and gloom in the world of copyright enforcement, and few readers of this weblog can have failed to notice that life is rarely rosy for photographers.  It is therefore with great pleasure that the 1709 Blog can give some space to a bit of jubilation on the part of a small claims track litigant in the Intellectual Property Enterprise Court (IPEC) for England and Wales. The litigant in question is aerial photographer Jonathan Webb of Webb Aviation (here and here), whose stunning photograph -- portrayed below -- was brutally and callously infringed, with results that turned out to be far better for the victim than the infringers could ever have imagined.  This is what he writes:

Hi, I have news from the IPEC small claims track which may be of interest. The short version is that I was awarded a 500% Flagrancy uplift plus costs which I believe is a new record for the IPEC small claims track. The undisputed value of my images was £300 (ex VAT) so I got that plus £,1500 plus court costs, plus train fair plus £90 witness expenses, making a grand total of £2,716.

Another big first for IPEC small claims is that the corporate veil was well and truly pierced. The two directors were held to be personally jointly and severally liable along side their now dissolved limited company.

In the IP world generally this is probably not big news but for small-time creative like me, the IPEC small claims track has proved to be very effective and has changed the IP scene dramatically. Before the IPEC small claims track opened in 2012 the UK had become a copyright wild west. Copyright of IP worth just a few hundred pounds was effectively unenforceable with legal fees threatening to top £20,000 for a case arguing over a work with only a three figure value. In my own case only a very tiny proportion of commercial users of my images were doing so lawfully. The vast majority of people wanting to use my images were simply illegally copying the image from my website and removing any copyright info from my images.

In 2011 I was at the point of almost giving up and had reduced my expenditure on stock photography in the UK dramatically, preferring to invest more in my German photography, where copyright infringement is much less of a problem. Once the IPEC small claims track opened all that changed dramatically. Not only can I make a few of the infringers pay me, but much more importantly many previous infringers are now having to actually take a licence in my works, which has led to a big increase in normal sales over in addition to the small additional infringement settlement income. This has saved my business form destruction and I am investing in photography once again.

Jonathan then provides further detail.

The Case Number is IP14S01982 Jonathan C K Webb (Claimant:) v 1.VA Events Ltd, Carl Jason Austin and Dale Stanley Vicker, 5 March 2015.

 

The image that was infringed is shown above. In the infringement the image was converted to black and white and each and every one of the copyright notices (©www.webbaviation.co.uk) was removed . Here and here are a couple of close-ups showing the original and infringing versions side by side showing just two of the 33 instances where the script was carefully removed, using the Clone tool as found in photo editing software such as “Photoshop”. Considerable time over many hours has been spent on removing this copyright script as each script has been expertly removed a tiny bit at a time so that the replacing texture matches into the rest of the photograph. Great care and effort has been devoted to ensuring that what was previously covered by the copyright script is replaced by something which looks like what should have been there beforehand, so for example, where © www.webbaviation.co.uk had previously covered a section of tram lines, in the infringing version of the image, new tram lines have been carefully painted into place so that little trace of the removed copyright script remains. Similarly where the script previously crossed a series of roof trusses over the Great Northern Railway Goods warehouse, new roof trusses have been painted in by the infringer to replace those previously covered by the copyright script. The result is that to the layman the image looks like an original image, however to an expert when viewed magnified, the clone tool leaves behind tell tale evidence of its use.

The defendant had put all blame on their elusive web designer who was also a dissolved limited company and apparently could not be contacted. The defendant did not provide any supporting evidence for the web designer's alleged involvement such as the web designers contract.

The big issue of the case was the piercing of the corporate veil. The defendants in this case are a limited company and the two directors against whom I personally issued proceedings as joint tortfeasors with their company. One of the directors was present and represented himself, his co-director and his company. He reiterated in court that the website had been contracted to a third party and that any liability on their side should be the liability of the company and not the directors.

The judge found in the claimant's favour and found the directors to be personally liable with the judge citing MCA Records Inc v Charly Records [2002].

I had thought much of the veil-piercing would rest on the fact that the defendants had abused the corporate veil by dissolving the company in the middle of proceedings (the form to dissolve the company was by amazing coincidence signed the day before the defendants received the claim form!). Anyway, that was not mentioned but much was said over the two directors controlling the company alone. The phrase "directing mind" from the above case was used.

Clearly veil-piercing is not for every situation but in cases like this the directors must have been party to the decisions around the infringement which was criminal in nature, they are personally liable.

The defendants' other defence was the usual Copyright, Designs and Patents Act section 97(1) one: "We didn't know it was copyright protected". This got short shrift from the judge who quoted the Hoffman v Dare judgment. The judge said it was naive to suggest that a company involved in promotion and marketing could say they thought images found on the net were not covered by copyright.

When it came to flagrancy I was shown two letters which the defendants had written to the court, describing the claim as ludicrous and preposterous. I had not been copied with these letters but was given time to read them during the hearing. As well as denying their own liability and placing blame on the uncontactable web designer the defendants' letter also stated that the claimant was responsible for the infringement because I had put the images on the internet. Now if we go back to the original image I linked earlier, you can see that in the entire history of photographs on the internet there has never been a more clearly copyright marked photograph displayed so there is no doubt that the defendants' unwise comments and attitude to copyright contributed greatly to the amount of the flagrancy award -- and indeed the judge commented on the defendants' attitude to copyright in her summing up.

Also coming back to haunt them, the defendants had described the removal of 33 instances of “© www.webbaviation.co.uk” and unlawful use of the image as "inadvertent"! The judge commented that the use of this word was misleading and indicative of the defendants' attitude. The removal of 33 copyright scripts was described by the judge as deliberate, deceitful, calculated and not easy to do with each script being individually removed. This also had the consequence of orphaning the work.

There was also derogatory treatment as the defendants had added their own assertion of copyright on the web page, deliberately removing the claimant;s copyright notice and inserting their own copyright notice at the bottom of each web page which indicates they knew about copyright.

Damages were awarded as the value of the image (uncontested) £300 plus 500% for flagrancy, making £1,800 In total. To that were added court issue fee £205, hearing fee £335, train fare £82, and witness fee of £90 plus interest at 4% making a grand total of £2,716.

With regard to interest, this was added to both the principle and to the flagrancy element. Previously it had been turned down for the flagrancy element but in this case the particulars of claim put more justification on the bases that the flagrant act was carried out in the beginning.

All in all a very interesting day and, for me, the most important thing is not the £2716 I will get from the defendant, but the fact that the defendant has to pay £1,800 for a £300 picture, plus costs, will deter other image users from infringing my work. This will be worth far more than £2,716 in extra sales from people who will now buy instead of infringe.

Fordham Report 2014: Enforcement

The average Fordham copyright enthusiast
getting in the mood
for the enforcement session

The second copyright session of this afternoon at the 22nd Fordham IP Conference [again: do not forget that 6th May is the day of my Post-Fordham Copyright Catch-Up event] was moderated by David Carson (IFPI) and dealt with enforcement issues.

The first speaker was Jane C Ginsburg (Columbia Law School, New York), who examined ISP liability and website-blocking in the EU, following the recent decision of the Court of Justice of the European Union (CJEU) in Telekabel [here], as well as earlier rulings in Scarlet [here] and Netlog [here]. She recalled that Article 8(3) of the InfoSoc Directive must be balanced against Article 3 of the Enforcement Directive and Article 15 of the E-Commerce Directive, and also highlighted the relevance of Charter fundamental rights [see paras 45-47 of the Telekabel decision for some CJEU discussion on this very point] to enforcement discourse. Despite the ambiguities of the Telekabel decision, she concluded that filtering measures would not be compatible with EU law.

Then, Karen R Thorland (MPAA) discussed how different copyright regimes have designed and implemented notice and takedown systems, which she considered as just one means to help reduce infringement. There are statutory regimes, regimes set through case law, and others that are the result of voluntary agreements. Going into details, Thorland reviewed the information that notices must include; obligations of intermediaries upon receipt of notices; the consequences of sending improper notices; and effectiveness of the various systems in actually removing infringing material from the internet. She also mentioned the case of Italy as the first country in Europe to provide for an administrative website blocking procedure [earlier this week, AGCOM issued its first blocking order: see here]. 

#Quentincometoeurope as an enforcement
(or lack thereof) case study?

After that, it was the turn of Alexander Tsoutsanis (Institute for Information Law (IViR), University of Amsterdam, and DLA Piper) to discuss the recent Svensson decision (and prior to this, the opinions of the European Copyright Society and ALAI), and his paper Why copyright and linking can tango.

The presentations were followed by discussion with the audience and panelists Kristina Janušauskaitė (IFPI), Jan Bernd Nordemann (Boehmert & Boehmert, Berlin) and Silke von Lewinski (Max Planck Institute for Intellectual Property and Competition Law, Munich). 

Unexpectedly and without much explanation, at a certain point the IPKat #Quentincometoeurope campaign was displayed on the screen: #Fordhamgetspolitical? 

China prioritises IP enforcement and administration

The China Daily reports that “Piracy has long been staining the reputation of China on intellectual property rights protection. However, thanks to government crackdowns and public awareness, things have changed for the better.” In late January, Chinese Vice-Premier Wang Qishan called for more efforts to fight copyright infringement and counterfeit products in China and Wang, also a member of the Standing Committee of the Political Bureau of the Communist Party of China Central Committee, stressed that the crackdown on intellectual copyright infringement and counterfeit products was an important task that should be intensified for the long term, pointing out the accelerated pace of enforcement over the last two years aimed at curbing illegal activities.

The manufacture and sale of counterfeit products and copyright infringement has long been a serious problem in the country, and two recent news reports caught my eye: In the first, the China Daily reported that a defendant, Wan Yongshen,  had  been sentenced to six months in jail and fined 2,000 yuan ($320) in the Haidian District People's Court in Beijing. Wan was convicted of illegally publishing copies of the works of Mo Yan, winner of last year's Nobel Prize in literature. The National Office Against Pornographic and Illegal Publications (NOAPIP)  said that Wan Yongshen published 3,000 illegal copies of Mo's books. The maximum sentence available to the court was seven years (substantially more for [publishing pornographic material). 

In the second case, the local authorities in Central China's Henan province raided a publishing house suspected of printing pirated books and found some 20,000 illegal copies. According to NOAPIP, they informed local authorities about the case after being tipped off by a letter in November. Local law enforcers in Zhoukou city then raided Longtu Printing Company and confiscated the alleged illegal publications, most of which were "driving test guidance books". The case has been transferred to police for further investigation "considering its seriousness", said local authorities.

NOAPIP reported it had been involved in fighting 36 important copyright cases, including Wan's case, in 2012, in cooperation with the Ministry of Public Security, National Copyright Administration, the Supreme People's Court and the Supreme People's Procuratorate. NAOPIP also disclosed 10 most common forms of copyright infringement cases that it fought in 2012. Among them, the most serious punishment handed out was an 11-year prison sentence in Tianjin, while the highest fine was 3.2 million yuan, for a copyright case in Harbin, Heilongjiang province. In early 2011, police arrested more than 4,000 people suspected of IPR violations in a nationwide crackdown; The Ministry of Public Security announced that vendors of illegally copied films, music or other copyright products online will face up to three years in jail. NOAPIP  said that in 2012, 5,331 copyright infringement cases had been brought nationwide and more than 40 million pirate items confiscated or destroyed.  45 million illegal publications were confiscated and more than 15,000 related cases were handled in China in 2012. In February 2012, the country launched a nationwide campaign against online piracy, during which authorities investigated more than 2,800 cases, involving 7.74 million yuan ($1.23 million), and withdrew certificates from at least 36 websites and companies.  China's Ministry of Culture announced  that it has opened investigations into 185 websites over suspicions of piracy and other illegal operations. The websites include 72 music websites, 67 animation sites and 46 gaming sites. The key target for 2013 will be piracy by online bookstores, e-commerce platforms and online auction websites.  

On the other side of the coin, a record-high number of 139,228 software copyrights were registered in China in 2012, according to the National Copyright Administration Agency. Beijing topped all municipalities and provinces with 39,125 registrations, followed by Guangdong and Shanghai. Software copyright registrations related to cloud computing contributed 1,946 filings, up 118% on 2011. The National Copyright Administration Agency also called on Chinese collection societies to “enhance their performance and transparency to better protect copyright holders”. With a history of just 20 years, collection societies are relatively new.  The Music Copyright Society of China was first established in 1992. Another four collective management organizations were founded in the past six years. Acknowledging that there were still serious issues with the systems already in place,  Yan Xiaohong, vice-director of the National Copyright Administration said "The collective management organizations need to improve their management level, and be more professional and transparent to better serve their members." and look to collection societies in developed nations for inspiration and guidance.

http://www.chinadaily.com.cn/business/2012-11/06/content_15880293.htm
http://www.bernama.com.my/bernama/v7/wn/newsworld.php?id=942807

http://africa.chinadaily.com.cn/china/2013-04/16/content_16409471.htm

http://www.chinadaily.com.cn/china/2013-01/20/content_16145813.htm

And an interesting judgment and judge's opinion on the protection of traditional folklore works in China, in the absence of statutory protection: http://www.chinadaily.com.cn/m/cip/2011-12/28/content_14344619.htm

EU to revise InfoSoc Directive with a FLET approach

Gangnam Style upgraded

Tomorrow the EU Commission will hold an orientation debate on content in the Digital Economy. This will address the points raised in a document released last week (which you can find on the website of  IP Watch), in particular "whether the copyright framework remains fit for purpose in the digital context." [This refrain seems to have become more popular than Gangnam Style, at least in copyright circles]  

Consumers and businesses are said to agree that copyright rules have to be made more flexible and their views were a major factor in the rejection of ACTA. The growth of Pirate Parties in some Member States is another indicator of this trend, explains the document.

Therefore the time is apt for the Commission "to agree on orientations on copyright in the digital economy for the second half of its mandate, taking into account the opportunities and challenges for the full value chain of the internet economy. The European Council has also recognised the need to modernise the copyright system in the Compact for Growth and Jobs."

What the Commission is going to discuss includes the following:

I) The balance of rights and obligations, in particular: the nature and role of the different players in the internet value chain for the production, distribution and consumption of creative content. Particular attention shall be dedicated to user-generated content, aggregators, users' activities online, direct licensing, enforcement.

He's certainly fit and is
also ready to fix copyright

II) The EU copyright framework, as resulting from the InfoSoc Directive. To preserve a fair balance of rights and interests between right-holders and consumers, the directive included a number of possible exceptions and limitations, while leaving significant flexibility to Member States for their transposition. This situation is said to cause fragmentation of the Single Market and legal uncertainty.

Following the adoption of the IPR Strategy in May 2011, the Commission has taken various steps to respond to the challenges of copyright in the digital economy, including the adoption of the Orphan Works Directive, the Memorandum of Understanding on Out-of-Commerce Books, and a proposal for a directive on collective rights management.

But these initiatives have not addressed all the challenges identified above. Therefore, there is a need to review and modernise the copyright framework set out in the InfoSoc directive. In particular, the elements calling for specific consideration are four: Fragmentation - Limitations&Exceptions, Enforcement, Territoriality (FLET, for those who love acronyms or just want to learn things faster).

1.   How best to reduce the fragmentation of the EU copyright market. Currently distinct copyrights exist for the 27 national territories and must in principle be subject to appropriate licensing for distribution in each Member State. Options floated in the 2011 IPR Strategy include the creation of a European Copyright Code, the setting up of an optional unitary copyright title which would exist in parallel with the national regimes, and the obligation of multi-territorial licensing.

2.  The extent to which the current level of harmonisation as well as the scope of the limitations and exceptions to copyright are appropriate for the digital age, given that they were implemented to varying degrees in the Member States.

3.  How to improve enforcement. Any change in the copyright directive will have to be mirrored in parallel revisions of the Enforcement Directive (the IPRED directive). The impact of a possible copyright reform on fundamental rights [have you noticed all those references to fundamental rights in recent CJEU copyright cases?], as well as the consequences on the EU's international obligations in the field and on the EU's position towards third countries would also have to be assessed.

4.  How to mitigate the effects of territoriality in the Internal Market by looking at all options, including introducing a "country of origin" approach or an approach based on the "targeting" of certain publics. [remember what the Court of Justice said in Sportradar (noted here and here)?] This needs to take into account the fact that some restrictions on the provision of services are commercially based and not related to copyright [perhaps the decision in Murphy (noted here) went too far?]

What recipe for EU copyright?

Work to prepare a full revision of the legal framework should be completed by early 2014 so that the Commission is in a position to decide whether to table legislative proposals during this mandate.

III) Specific issues, including cross-border portability, user-generated content, text and data mining,  private copying levies,  the audiovisual sector, and some activities of cultural heritage (in particular format shifting).

The questions which the members of the Commission are called to answer are the following:

1) Do you share this analysis of the developments of the internet economy and its implications for the copyright directive?

2) In particular, do you agree with the terms of the revision of the [InfoSoc] directive outlined in the present note?

3) Do you agree that in parallel rapid progress should be made on the ... issues identified here?  Are there other areas which should be prioritised in the short term?

Some The Pirate Bay users use VPNs… now there's a surprise!

Sailing the seas in an invisible boat
© Joriel Jimenez

Swedish legal researchers have published a paper entitled: "Law, norms, piracy and online anonymity: Practices of de-identification in the global file sharing community". The purpose of the study was to "understand more of online anonymity in the global file sharing community in the context of social norms and copyright law", meaning that the researchers have looked at who uses VPN or similar services in terms of their age, gender and geographical location as well as in relation to whether they file share or not.

 

The study was mainly conducted by way of a web-based survey and was conducted in collaboration with the BitTorrent tracker The Pirate Bay which enabled the survey to be linked to the main logo of The Pirate Bay website. Within 72 hours the authors had received over 75,000 responses.

So what did the survey show? Overall, 17.8% of respondents used a VPN or similar service (free or paid). The paper says that "a core of high frequency uploaders is more inclined to use VPN or similar services than the average file sharer. Online anonymity practices in the file sharing community are depending on how legal and social norms correlate (more enforcement means more anonymity)."

Of course the people willing to participate in a survey on a site like The Pirate Bay are likely to be those who know that they are anonymous, i.e. those using VPN. Those who are not using VPN can be traced and so might be foolish to complete the survey, making the survey likely to be slightly skewed in favour of VPN users. That said, the general concept makes sense: use of VPN services correlates with increased illegal activity and with increased enforcement.

The paper says that: "This study adds to the knowledge of how the Internet is changing in terms of a polarization between stronger means of legally enforced identification and a growing awareness of how to be more untraceable." Meaning that we are in a cat and mouse situation because every step that rightsholders and/or legislators take to clamp down on file sharing only makes file sharers delve deeper into the technology available to them to hide what they are doing.

What can rightsholders do to trace filesharers who use VPN? The answer, at the moment, is not a lot. Using VPN is, in most countries, not illegal. This is an angle which most legislators appear to either have been unaware of or to have disregarded when drafting legislation presumably because there is no magic solution. I'd be interested to hear readers' thoughts on what steps law enforcers could take with regard to VPNs.