It may be an email, a regular letter, a phone call or some other type of notification coming from a lawyer or a copyright owner. You are notified that you are infringing the copyright and you start wondering why, when and how.
The claim might be referring to an article you recently published on your website, a photograph or a video. Or it may be something related to some of the products you are selling. The notification says that you have to take certain measures to avoid something from happening or to stop something immediately. You might even be threatened by a court action against your company.
Whatever you do, don’t panic! There are solutions that can help you avoid any future problems related to copyright law. The best idea is to stay calm and avoid anything that you may regret. Better yet, do nothing! Just read the notification carefully and analyze your options. Don’t take any radical steps. Take the time to understand what is happening and try to make sense of what is going on. Try to contact a copyright attorney immediately for guidance and legal assistance in case a copyright lawsuit occurs.
What Are You Accused Of? What Is Copyright Infringement After All?
The first thing to understand is: what is copyright infringement? Why is this happening? In simple words, copyright infringement happens when someone uses a copyright-protected work of someone else without permission. The work used can be anything that is protected by copyright, like a book, an article, a song, a photo or a video. If something is protected by copyright, you cannot use it on your own without asking for permission. You cannot use the work both digitally or otherwise without asking the person or organization which holds the copyright.
The Validity Of The Claim
If you already received the notification, you must determine the validity of the claim. The notification is called the “demand letter” in legal jargon and it will include information related to the protected work. Usually, the demand letter will explain what work is protected and what work you used without permission. Check whether the information is true. Are these really the materials you are using without permission? Are you really using them in the manner described in the demand letter? Is the information presented in the letter factual? Are they really protected by copyright or are they in the public domain? Have you already licensed the materials? Have you obtained an assignment for them?
There are other questions you will need answers to. For instance, if you asked for permission, did you actually obtain it? Keep in mind that permission has to be in writing and should include the information on how to use the work in question. Are you using the work according to the permission? Do you follow the terms and conditions that are described in the license? For instance, you probably obtained permission to use a photo for 6 months on your website, and you are using it for more than a year. If this is the case, you are in breach of copyright and the owner is right. If you don’t take the photo off your website, the copyright owner may start legal action, and a copyright lawsuit can be a disaster for a small company.
The license may also be available under certain conditions. For instance, the license may state that only authorized users may have access to the protected work. For example, an article written and published by a company may not be viewed by the general public. You may only republish it to 100 people, and all should have access to it via a password. If your company allows thousands of people to read it, you may be in breach of copyright. Contact a copyright attorney if you need more information on how these legal aspects work.
The Fair Use Provision
In some specific situations, the use of a protected work can be considered “fair use”. This provision is available in most countries, but its definition differs greatly. For instance, in the United States, the fair use provision is detailed in Section 107 of the Copyright Act. The section is very confusing and difficult to apply in many settings. The fair use provision is used on a case-by-case basis, and both lawyers and non-lawyers are often debating which type of work can be subject to this provision, and in what circumstances. A lot of lawyers and non-lawyers will try to avoid this provision as it is very confusing. Also, it may quite costly to get a qualified legal opinion from a lawyer each time you want to use this provision.
Essentially, fair use is often used for copyright-protected work used in news reporting, education, research or parody, among others. The Copyright Act lists four factors that can help you determine what is fair use:
- The Purpose and Character – Is the work used for profit or for educational purposes?
- The Nature of the Work – What type of work are you using without permission?
- The Amount and Substantiality of the Work Used – Are you using all of the work or only parts of it?
- The Potential Market Value of the Work – The Financial Impact of the Work – Commercial uses are less likely to be considered fair use
Common examples of fair use may include excerpts or quotations from books, such as those used in reviews or research papers; quotations in technical works; reproduction of material used for educational purposes, such as classroom work; news reports.
Contacting Your Copyright Attorney
As soon as you gather all the relevant information related to the claim, you should immediately contact a lawyer. In some cases, it’s advisable to contact the lawyer immediately after receiving the notification. However, in most situations, you should first do your own research before contacting the lawyer. Always work with a lawyer who has experience in these legal matters and knows how to defend your position. Discuss your options with the lawyer and decide what your approach should be. In some cases, your lawyer may advise you to simply ignore the claim; in other cases, you may be able to ask for permission and continue to use the work in question. On the other hand, if the user is not legal, you will have to stop using the work in order to avoid a potential copyright lawsuit.
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