Freelancers' Questions: How to deal with a copyright claim?
Freelancer’s Question: I run an internet forum and have received an email from someone claiming copyright infringement on particular posts. Some of the posts are copies from articles on his website. However, his site closed several years ago and the information was obtained via archive.org. According to my Google search, some of the articles in dispute are available on the web (including on the BBC’s website) so it appears he never owned some of the material. Other materials he claims copyright to are extracts from a book.
With this claim of copyright infringement, and others I may receive in future, how can I know if the material cited is genuinely owned by the claimant or whether it is, in fact, a copy from someone else? Isn’t the onus upon the claimant to prove that they actually created the work?
Expert’s Answer: The basic position for copyright infringement is that it is for the claimant i.e. in this case the person emailing you alleging the infringement to show ownership of the copyright. Note; this does not mean that they need to be the author of the work (in this case the articles) because the work can be assigned i.e. sold to other parties hence ownership can change.
However this is not always straightforward, especially online. In such a circumstance as stated above, the claimant could (via archive.org at least) show you a link to the work on a website that he owns, but there is no way to tell if he is telling the truth that he owns the copyright or if he is ‘pulling a fast one’ – a non-legal term! As you have found out in this case, the work seems to originate from other sources which would indicate that perhaps the claimant is not the owner of the work. But, as mentioned above, the rights in the work could have been assigned to him.
Normal practice in this case would be to suspend the work from the site or forum and give the claimant 14 days to prove ownership of the work. In such a case, it is unlikely that they will do so. However a statement to the effect that they are the owner of the work, and that they will indemnify you for any costs or loss of revenue in the event that it turns out that they are not the owner, will suffice for your purposes.
You should be aware that by running an internet forum you are protected by the Electronic Commerce Regulation's hosting defence in relation to posts by your users that infringe a third parties’ copyright. This defence works insofar as you are not aware of the infringing material (or more precisely that fact that it is infringing). Once you are made aware that the material infringes a third parties’ copyright, you become responsible for it and may be liable for copyright infringement.
On notification of copyright infringement on your forum, you should therefore take the following steps:
1. Suspend the material and give the claimant 14 days to show that they are the owner of the work;
2. On receipt of proof of ownership, delete the material and warn the user that is responsible, where a user has uploaded such material previously you should consider banning them.
The expert was Ben Evans, partner at Lawdit Solicitors,
a legal firm specialising in intellectual property, internet and technology law.
15th December 2009