What to do if your copyright is infringed

This article  by Elaine Larkin first appeared on Journalist.ie on 1 February, 2010. Reproduced with the author’s permission.

Finding out that an article you’ve written as a freelance journalist has been reproduced without your knowledge can be an irritation to say the least.

However, with the advancement of the internet as a forum for people to publish material through blogs and news sections on websites, copyright infringement has become a bigger issue for journalists.

The problem is two-fold: people who have no understanding of copyright can be responsible, as well as those who perfectly well know what they’re doing and hope not to get caught.

Andrea Martin, consultant solicitor with the Media Group of Eugene F. Collins, Solicitors in Dublin says, there’s an entire generation are very skilled technologically and very creative in many ways. “They are doing fun things with clips of music, clips of video material, cutting, pasting, splicing, putting it together, reorganising, and recreating. A lot of the time they are not realising there are copyright issues inherent in that.”

Martin adds that what is also problematic is that material is written for one medium or photographs are taken for one medium and then reappear in other web-based formats. “It’s very very difficult to monitor the use. Your material may be used and you may not be aware of it until quite accidentally it’s brought to your attention.”

Of course, there’s also the issue of ‘rights grabs’. Martin feels that freelancers in particular are obviously anxious to have their work published and “are frequently put under pressure to sign over rights.”

Crossed words. Image via Morguefile.com

“There are two things that can happen. Either they are put under pressure to sign a release form that gives a print outlet a right to use the material in any other medium or format. Alternatively, they may not be aware of the re-use. That’s more common.”

The re-use of printed material online, without paying extra for the privilege, by a newspaper or magazine is something that many journalists are unhappy about. However, journalists may not have much of a case in that regard. “Most newspapers make their daily publications available online to the extent you could probably regard online publication as part and parcel of daily print publication,” says Martin.

However, further commercial exploitation of that, she says, is a different story. “Selling material, selling it to other third party publications, anything where the publication to which you have sold the material makes money out of it and doesn’t give you a cut, that is where I think that journalists could usefully be much more assertive.”

So what are your options if your copyrighted material reappears unauthorized by you online?

1) Send an invoice

If it’s a private individual or a business that has breached your copyright and you can identify them, you can send an invoice in respect of the re-use and send a letter. Ensure you’ve identified the correct individual/company.
Martin suggests writing the following in a letter: “Here’s an invoice in respect of the unauthorised re-use of my copyright material. Payment of this fee will grant you a retrospective licence for such use. Please note this was material used without my consent. Any further use without my consent will be in breach of my copyright.”

2) Know your rights

International copyright law is very well co-ordinated among countries that are signatories to the Berne Convention. While this protection exists, in practice tracing a blogger or someone who infringes your copyright online can be impossible.

3) Contact the ISP (Internet service provider)

In any situation where you believe your copyright has been breached e.g. on YouTube, you should notify the website proprietor and/or the ISP. In the US there is quite a refined procedure under the Digital Millennium Copyright Act (DMCA) called the ‘take down procedure’. You can send notice to the ISP that there is material that is in breach of copyright on a website hosted by them and ask them to take it down, advises Martin.

“They will notify the website holder of the fact that this notice has come in. They will ask for a response; if there is no response, then after a set period of time they must take it down. If there is a response in which the person against whom the alleged breach of copyright has been made contests your breach of copyright claim, then that’s passed back to you and you have 14 days within which to institute proceedings to vindicate your copyright. If you don’t issue those proceedings, the ISP is entitled to allow the material to go back up on-line.”

There is similar protection available under the E.U. E Commerce Directive of 2000 but the system of protection for copyright holders and ISPs is not so clearly defined or clear-cut as under the DMCA.