Do EU copyright laws allow people to be sued without proof of financial damage?

salamanca22

Johnboy1951 wrote: »

If it was a repeat offence I could understand that ...... there is no information that it was.

There was no commercial damage.

They had a no tolerance policy. They sue on the first violation in the same vein that some shops have a no tolerance policy on stealing and they will call the guards for a 50c bar being stolen.

A violation is a violation. It's an expensive lesson to learn but there you go.

bpmurray

Johnboy1951 wrote: »

There was no commercial damage.

I find it hard that people don't understand copyright. It's really, really simple. You expect to be paid for your work, just as a writer or photographer does for his/her work. If you use their work without paying, you will be subject to a take-down notice AND to pay the fee for use. If you annoy the copyright owner, you'll probably provoke a law suit with the associated legal costs (yours and the copyright-holder's) as well as punitive damages.

So, if you infringe copyright, the only sensible action is to apologise and pay the fee - you'll probably be allowed to keep the image on your blog for that. The fee will range from around €300 to perhaps €30000 if it's a prize-winning photographer.

There is, of course, an exception - fair use. This often applies in situations where you are parodying the copyrighted work, although it's usually safer to ensure that the copyright owner is OK with that before starting (Weird Al apparently always got approval for his parodies).

Johnboy1951

bpmurray wrote: »

I find it hard that people don't understand copyright. It's really, really simple. You expect to be paid for your work, just as a writer or photographer does for his/her work. If you use their work without paying, you will be subject to a take-down notice AND to pay the fee for use. If you annoy the copyright owner, you'll probably provoke a law suit with the associated legal costs (yours and the copyright-holder's) as well as punitive damages.

So, if you infringe copyright, the only sensible action is to apologise and pay the fee - you'll probably be allowed to keep the image on your blog for that. The fee will range from around €300 to perhaps €30000 if it's a prize-winning photographer.

There is, of course, an exception - fair use. This often applies in situations where you are parodying the copyrighted work, although it's usually safer to ensure that the copyright owner is OK with that before starting (Weird Al apparently always got approval for his parodies).

What in my post implied to you that I did not understand copyright?

Certainly it could not have been the part quoted.

salamanca22 wrote:

They had a no tolerance policy. They sue on the first violation in the same vein that some shops have a no tolerance policy on stealing and they will call the guards for a 50c bar being stolen.

A violation is a violation. It's an expensive lesson to learn but there you go.

Yeah, but the comparison with the shop theft really points up what I mean ....... has there ever been a court case for such a theft with a €1500 fine? ..... or even gone to court for a first offence?
But as I said earlier, theft is a different animal

salamanca22

Johnboy1951 wrote: »

Yeah, but the comparison with the shop theft really points up what I mean ....... has there ever been a court case for such a theft with a €1500 fine? ..... or even gone to court for a first offence?
But as I said earlier, theft is a different animal

It wasn't a fine. In this case it was punitive damages. Punitive damages are awarded for the reason to deter this exact behavior.

BoatMad

Peregrinus wrote: »

How can you know this, if . . .




They may be. Or the phone company may be. Or the manufacturer's composition could be, um, strikingly similar to an earlier piece to which someone else owns the rights, and this infringement action could boil down to a plagiarism action.

There's a reason why most phone systems just play "Greensleeves".

Imro collect dues where any song is played in public ( or to the public ), music on hold has been deemed to be a public playing of music. It doesn't matter if the phone company hold copyright , that just means you don't have to pay the songwriters.

Peregrinus

BoatMad wrote: »

Imro collect dues where any song is played in public ( or to the public ) . . .

Only for songs, the rightsholders to which are represented by IMRO. That's an awful lot of songs, but it's not every song. So if IMRO sues the people playing music-on-hold in this case, it will be up to IMRO to show who holds the rights to the songs being played, and to show that that person has appointed IMRO to represent them.

BoatMad wrote: »

It doesn't matter if the phone company hold copyright , that just means you don't have to pay the songwriters.

Strictly speaking it's not just the copyrights that are at stake here, but the performing rights. Assume that the song is one whose rightsholders are represented by IMRO. Somebody has made a digital copy of the song (for the purpose of installing it in the phone system). That's a breach of copyright, if done without a licence from the rightsholders. And someone is playing the song to the public. That's a breach of the performing rights, if performancy royalties are not being paid (and if they do not have permission from the holders of the performance rights).

Uno my Uno.

€1500 in the district court for the photo is a very small award. In debt collection matters many commercial clients would barely consider it economical to pursue that amount except where it forms part of a policy to always pursue debts.

And of course, getting the order is one thing, getting the money is an entirely separate matter.

My point being that €1500 for punitive damages is probably the lowest reasonable award that could be made. I assume that costs followed the order although I didn't see it in the article.

salamanca22

Uno my Uno. wrote: »

€1500 in the district court for the photo is a very small award. In debt collection matters many commercial clients would barely consider it economical to pursue that amount except where it forms part of a policy to always pursue debts.

And of course, getting the order is one thing, getting the money is an entirely separate matter.

My point being that €1500 for punitive damages is probably the lowest reasonable award that could be made. I assume that costs followed the order although I didn't see it in the article.

Punitive damages are meant to deter someone from certain behavior. 1500 is a lot to a non profit or low profit group. They won't do it again so the order would have been successful. And if they do it again then next time it will be a larger reward.

Uno my Uno.

salamanca22 wrote: »

Punitive damages are meant to deter someone from certain behavior. 1500 is a lot to a non profit or low profit group. They won't do it again so the order would have been successful. And if they do it again then next time it will be a larger reward.

I don't think it is a lot really, even for an NGO. Certainly if you took that action hoping looking to secure punitive damages you'd be hoping for much more. I would think €4000 or €5000 would be more in line with expectations and would be a lot more of a deterrent.

I don't disagree with the amount awarded, I think it was correct, I just don't think it is as big a deal as some others seem to.

Peregrinus

Johnboy1951 wrote: »

There was no commercial damage.

Yes, there was. The rightsholder - the photographer - didn't get the licence fee to which he is entitled. And he makes his living out of licencing the use of his property.

Using somebody's else's property without paying for it inflicts commercial damage on that person. And this is true whether the property is tangible, like a house, or intangible, like the intellectual property in a creative work.

Johnboy1951

Peregrinus wrote: »

Yes, there was. The rightsholder - the photographer - didn't get the licence fee to which he is entitled. And he makes his living out of licencing the use of his property.

Using somebody's else's property without paying for it inflicts commercial damage on that person. And this is true whether the property is tangible, like a house, or intangible, like the intellectual property in a creative work.

Besides the licence fee, what damages were inflicted?

... damage was mitigated by the fact no-one in Ireland had seen the offending post.

Judge:

I do believe that there has been an infringement, albeit an innocent infringement of rights. I’m satisfied that the claimant has rights to the photograph… and those rights are registered in Ireland,

So what was the 'award' for?

No one in the jurisdiction saw the pic.
The infringement was innocent.
The 'take-down' notice was complied with.

There is no indication a licence fee was requested and refused.

I hope they successfully appeal the award.

Fred Swanson

This post has been deleted.

Johnboy1951

Fred Swanson wrote: »

This post has been deleted.

Here we go again with this "stealing" BS.
It was infringement of copyright and not theft.

You might wish to separate the two .... innocent infringement and compliance with a take down notice .... but that does not wash in this case.

'Punitive damages' .... punishment for what? an innocent act which was corrected when brought to their attention?
The amount based on what? No one viewing the infringing content?

Paulw

Johnboy1951 wrote: »

an innocent act which was corrected when brought to their attention?

So, it's alright to do it, if it's not brought to attention?? :eek:

Sorry, copyright breach is copyright breach. It is very simple - get permission or don't use it. Not a complex issue at all. Not sure how you can't get your head around that.

Johnboy1951

Paulw wrote: »

So, it's alright to do it, if it's not brought to attention?? :eek:

Sorry, copyright breach is copyright breach. It is very simple - get permission or don't use it. Not a complex issue at all. Not sure how you can't get your head around that.

Not sure why you would imagine I can't

Peregrinus

salamanca22 wrote: »

It wasn't a fine. In this case it was punitive damages. Punitive damages are awarded for the reason to deter this exact behavior.

It was damages, but there was nothing in the newspaper report to suggest that it was punitive damages.

Johnboy1951 wrote: »

The amount based on what? No one viewing the infringing content?

Nothing in the newspaper report discusses the basis on which the award of 1500 was fixed. My guess would be that it was the kind of licence fee that would typically be negotiated for the use of such an image in advertising or promotional material. It's the kind of fee that they would have paid, had they negotated a fee.

Johnboy1951

Peregrinus wrote: »

It was damages, but there was nothing in the newspaper report to suggest that it was punitive damages.


Nothing in the newspaper report discusses the basis on which the award of 1500 was fixed. My guess would be that it was the kind of licence fee that would typically be negotiated for the use of such an image in advertising or promotional material. It's the kind of fee that they would have paid, had they negotated a fee.

Yes it is unfortunately a guess (which I tend to agree with) due to a lack of information.
I have no idea how the amount is arrived at or if it correlates to the actual licence fee.

Neither, unfortunately, is there any indication that the copyright owner asked for a licence fee and was refused.

From the info published, it is not beyond belief that the copyright owner never asked for a fee but just issued a take-down notice.
If an attempt at negotiating a fee occurred I would have expected that to be reported.

If that was the case then this was a waste of the courts time.

Not that it makes any difference, but the Theatre Site site apparently linked to the pic on the Italian infringing site, rather than hosting the pic themselves.

The hyper-linked photos on Tron Theatre Ltd’s social media channel directed to an Italian website, the court heard.

http://www.irishexaminer.com/ireland/media-group-rages-against-theatres-use-of-dylan-thomas-photographs-363663.html

Uno my Uno.

Johnboy1951 wrote: »

Yes it is unfortunately a guess (which I tend to agree with) due to a lack of information.
I have no idea how the amount is arrived at or if it correlates to the actual licence fee.

Neither, unfortunately, is there any indication that the copyright owner asked for a licence fee and was refused.

From the info published, it is not beyond belief that the copyright owner never asked for a fee but just issued a take-down notice.
If an attempt at negotiating a fee occurred I would have expected that to be reported.

If that was the case then this was a waste of the courts time.

Not that it makes any difference, but the Theatre Site site apparently linked to the pic on the Italian infringing site, rather than hosting the pic themselves.

http://www.irishexaminer.com/ireland/media-group-rages-against-theatres-use-of-dylan-thomas-photographs-363663.html

If the court felt its' time was being wasted it would have declined to make any order.

challengemaster

Johnboy1951 wrote: »

Neither, unfortunately, is there any indication that the copyright owner asked for a licence fee and was refused.

Why would they have asked for a licence fee when they didn't want the image being used in the first place? Asking for a licence fee would imply they were OK with the use and just wanted compensation for it.

Johnboy1951

challengemaster wrote: »

Why would they have asked for a licence fee when they didn't want the image being used in the first place? Asking for a licence fee would imply they were OK with the use and just wanted compensation for it.

I see. Assuming this is correct .....

What we have is someone who made a genuine error (Judge's opinion) of linking to a picture on another site which was itself infringing copyright.

On request to take it down, it was done.

No one in the jurisdiction viewed it.
The page had seven followers only.

.... but the copyright owner wanted his 'pound of flesh' ...... and got it through the Irish court system.

Legally entitled? certainly

Fred Swanson

This post has been deleted.

Peregrinus

If I crash into your car as a result of a genuine error, would you accept that because I made a genuine error you had no right to damages? Their infringement of the copyholder's rights may have been an error, but so what? It was still an infringement.

The error made was not taking any steps to check that the photograph they wished to reproduce was in the public domain. They simply assumed it was. They had no reason for making that assumption. (Yes, the photograph had already been used on an Italian website. But that website might well have negotiated the right to so so with the rightsholder.)

The website owners reproduced the photograph when they had no right to do so. They were asked to take it down, and did so. Had they wished to continue displaying it, and to pay a licence fee, they could have offered to do so, but they didn't. (Which is not surprising - there are many rights-free photographs of Dylan Thomas available.)

The position then was that they had already copied and displayed the photograph without paying any licence fee. That is not remedied by taking the photograph down; they had already had whatever benefit they sought from displaying the photograph - a benefit for which they ought to have paid. Hence, legal action seeking damages. You can't take something and then argue that you should have to pay for it because you took it through a genuine error. Error or malice, it's all the same to the rightsholder.

Johnboy1951

Peregrinus wrote: »

If I crash into your car as a result of a genuine error, would you accept that because I made a genuine error you had no right to damages? Their infringement of the copyholder's rights may have been an error, but so what? It was still an infringement.

The error made was not taking any steps to check that the photograph they wished to reproduce was in the public domain. They simply assumed it was. They had no reason for making that assumption. (Yes, the photograph had already been used on an Italian website. But that website might well have negotiated the right to so so with the rightsholder.)

The website owners reproduced the photograph when they had no right to do so. They were asked to take it down, and did so. Had they wished to continue displaying it, and to pay a licence fee, they could have offered to do so, but they didn't. (Which is not surprising - there are many rights-free photographs of Dylan Thomas available.)

The position then was that they had already copied and displayed the photograph without paying any licence fee. That is not remedied by taking the photograph down; they had already had whatever benefit they sought from displaying the photograph - a benefit for which they ought to have paid. Hence, legal action seeking damages.

Two things occur to me on reading this ......

1. It has been posted above that the copyright holder did not want a licence fee and so there could not have been any opportunity for the site to regularise their error by paying such a fee. You appear to have information to the contrary .... that they did not offer to pay a licence fee. Do you have a reference for this?
Also it appears they linked to the image and did not actually copy and store it ..... not that this differentiation makes a lot of difference in this case as they displayed the image using a link.

2. As has been pointed out many times there were no damages.
So lets re-write your car example and say there was an incident which narrowly avoided any damage ..... would you then expect to be able to claim damages?

For what was this €1,500 awarded?

1. Apparently the picture was not available to be licenced.
So it is not a licence fee.

2. The error was unintentional and innocent.
So its not punitive damages.

3. No one saw the pic before it was taken down.
Claiming some commercial damage in such a situation is stretching things a bit too far. As no one viewed the image it would have less affect than storing the image on my home PC where members of my family could view it.


So, again, what was the award for?

You can't take something and then argue that you should have to pay for it because you took it through a genuine error. Error or malice, it's all the same to the rightsholder.

First of all nothing was taken ..... but nevertheless as you have raised the point ...... it would appear that you have never read a report of someone genuinely walking out of a shop forgetting to pay, and NOT being subjected to a payment of an 'award' by the courts.
I am sure if you search you will find cases like this.
Also ask a shopkeeper if it happens and they accept payment for the item or return of the item.

Yes the shopkeeper would be 'entitled' to take the case to court, even for a genuine error, just as the rights holder in this case is entitled.

Most people I know would not consider that a right or reasonable action for the shopkeeper to take, in the case of a genuine error.

There is nothing I have read about this that makes me anything but uncomfortable regarding this going to court at all.


But, maybe there is some piece of missing information which would impact that view.

Peregrinus

Johnboy1951 wrote: »

Two things occur to me on reading this ......

1. It has been posted above that the copyright holder did not want a licence fee and so there could not have been any opportunity for the site to regularise their error by paying such a fee. You appear to have information to the contrary .... that they did not offer to pay a licence fee. Do you have a reference for this?

I don't, and there's no reference also for the claim that the rightsholder didn't want a licence fee. Since he earns his keep by licencing his photographs he presumably does want licence fees in return for their use. But if somebody steals your property is your first instinct to approach them and invite them to pay rental for its use?

If the rightsholder wanted to receive a licence fee and the website people wanted to pay one, then that's what would have happened - either before the website was built (which is when it should have been done) or as soon as the error was discovered (when the rightsholder complained) or, at latest, when proceedings were issued - even at that point, it was not too late for the website people to approach the rightsholder and said, look, can we negotiate a licence fee and settle the proceedings? And since the rightsholder wants licence fees, either there was no attempt to negotiate or the negotiations failed because they didn't want to pay the fee demanded.

Johnboy1951 wrote: »

Also it appears they linked to the image and did not actually copy and store it ..... not that this differentiation makes a lot of difference in this case as they displayed the image using a link.

Every time you look at a website, a copy of the images on the site is created on your screen. Look, it's right there. You can see it. It's not saved, of course (unless you save it) but it is created. And, though it's created on your computer, it's taken to be created by the website owner.

Johnboy1951 wrote: »

2. As has been pointed out many times there were no damages.

There were damages - loss of the licence revenue that was due.

Johnboy1951 wrote: »

So lets re-write your car example and say there was an incident which narrowly avoided any damage ..... would you then expect to be able to claim damages?

Well, if I was a car rental company and you took my car, didn't sign a hire agreement and didn't pay any rental, are their damages? Yes - loss of the rental that you should have paid for the use of the car.

Johnboy1951 wrote: »

For what was this €1,500 awarded?

Loss of income which was due to the rightsholder from anyone using the picture.

Johnboy1951 wrote: »

1. Apparently the picture was not available to be licenced.
So it is not a licence fee.

I wasn't aware of that. But it is of course the right of a property owner not to rent out the property if he doesn't want to. The measure of damages, I think, would still be the rental that the taker of the property would have paid, if this had been a rental on market terms.

Johnboy1951 wrote: »

2. The error was unintentional and innocent.
So its not punitive damages.

I agree, it's not punitive damages. I don't know who suggested that it was, but I think they were wrong.

Johnboy1951 wrote: »

3. No one saw the pic before it was taken down.

Doesn't matter. You pay a licence fee to use the property, not to use it effectively or efficiently.

Johnboy1951 wrote: »

Claiming some commercial damage in such a situation is stretching things a bit too far. As no one viewed the image it would have less affect than storing the image on my home PC where members of my family could view it.

Who said anything about "commercial" damage? The loss to the rightsholder is measured by reference to the licence fee that he could reasionably have expected had these people done what they should have done before using the photograph.

Johnboy1951 wrote: »

So, again, what was the award for?

To compensate the rightsholder for not receiving the licence fee that the website people ought to have negotiated and paid to use the photograph. Why is this so hard to understand?

Johnboy1951 wrote: »

First of all nothing was taken ..... but nevertheless as you have raised the point ...... it would appear that you have never read a report of someone genuinely walking out of a shop forgetting to pay, and NOT being subjected to a payment of an 'award' by the courts.
I am sure if you search you will find cases like this.
Also ask a shopkeeper if it happens and they accept payment for the item or return of the item.

If the shops take this to the courts at all, they don't sue for the value of the goods. They complain to the guards and have the person concerned prosecuted for shoplifting.

As for the shop accepting payment for the goods, I think the analogy here would be the rightsholder accepting payment of a reasonable licence fee. I expect they would have accepted that, if offered, because if somebody offers you 1500, why would you refuse and go to court to force them to pay 1500? You'd end up bearing the costs of both sides, which would certainly exceed 1500.

Johnboy1951 wrote: »

There is nothing I have read about this that makes me anything but uncomfortable regarding this going to court at all.

But, maybe there is some piece of missing information which would impact that view.

I'm guessing somebody made the same mistake as you - they thought "This was an innocent mistake! We shouldn't have to pay damages!" And they assumed that the court would agree, or they gambled that it would, and therefore made no offer to settle the claim by paying a reasonable licence fee. Their assumption was wrong, or their gamble didn't pay off.

Johnboy1951

Peregrinus wrote: »

To compensate the rightsholder for not receiving the licence fee that the website people ought to have negotiated and paid to use the photograph. Why is this so hard to understand?

There were damages - loss of the licence revenue that was due.

How could there be a loss of licence fee if the rightsholder refused to licence the pic? ..... which is likely as he stated in court he wanted to touch up the picture before making commercial use of it over the next 20 years.

No one is disputing the fact that using the pic was breaching copyright.
No one disputes it was done in error and corrected immediately it was brought to their attention.
As it was not viewed by anyone there was no commercial impact on its future use.

I am strongly inclined to the view that Mr Price did not negotiate at all with the theatre company.
If he had he would have strengthened his case in court by raising that fact.

As this conversation is getting nowhere; there being insufficient information available to dissuade either view, I guess we should leave it as
'we agree to disagree'.

cheers.

challengemaster

Johnboy1951 wrote: »

How could there be a loss of licence fee if the rightsholder refused to licence the pic?

If Hertz refuse to let you rent a car, and you take it anyway - ignoring the theft issue, there is still a loss of earnings.

It doesn't matter that he later refused to licence the image - the fact the image was used without permission means they were operating without paying the appropriate licence fee.

Peregrinus

Just on a point of clarification:

Johnboy1951 wrote: »

I am strongly inclined to the view that Mr Price did not negotiate at all with the theatre company.
If he had he would have strengthened his case in court by raising that fact.

You generally can't do this. Negotiations are "without prejudice". Policy is that people shouldn't be prejudiced by attempting unsuccessfully to negotiate, and then having that brought up to suggest that they must know that they have a liability, otherwise why would they have offered money to settle?

So the court is not told whether there have been unsuccessful negotiations.

The one execption to this is that the defendant can make a formal written offer ("we'll give you X euros to settle this matter"). If the plaintiff refuses and goes to trial, and wins but gets less than X euros, at that point the defendant can produce this letter and say "Look, he could have had X euros months ago. We shouldn't have to pay the costs of this trial." And the plaintiff will then have to pay the costs, even though he has won.

That didn't happen in this case, from which we can infer that the defendants made no offer, or they made an offer which was less than 1500.