Copyright: know your obligations and beware the trolls

 Did you know: if you intend to use someone else’s content on your website, in your brochure, or in your store, you need to license the use of it due to copyright? This goes for videos, writing, music, and photographs. But what exactly is copyright?

Copyright protects original works in the musical, artistic, literary, and dramatic domains. It ensures that only the copyright owner has the authority to 

• produce or reproduce that work or a substantial part of it in any material form
• perform that work or any substantial part of it in public
• publish the work, or any substantial part of it, if it is unpublished

Copyright infringement is when someone other than the copyright owner – copies, performs, sells/distributes, posts on the internet any protected work- without the permission of the copyright owner.

Using copyrighted works

When you discover a great piece of content on the internet that fits with your company’s advertising, you need to consider the legal consequences of using it. Ask yourself: Do I have permission to use this content? 

Check ownership:

If you know who created the image you want to use, you can reach out for permission and how they want to be referenced. It may be as easy as “Photo Credit: insert name” and include a link to the original source.

Sometimes if you are just surfing around the web, it can be difficult to know who the copyright holder is. There are some websites that have royalty-free photos that you may be able to access for free, or with a subscription to the website:

• Shutterstock
• I-stock
• Wikimedia Commons
• Pixabay
• Image Source

Be aware  if you use someone else’s images without permission, there are potential risks involved. For instance, you may receive communication from the copyright owner, their lawyer, or a company they hired to identify proper use of their work. The communication may tell you to either pay to license the image, remove it from usage, or face legal repercussions. Should you receive this type of communication, you may wish to seek legal advice to ensure you are following the law.
CAUTION: Claims like these are most likely legitimate, however, sometimes these requests can be phishing emails from someone trying to trick you into paying money. 

Copyright trolls 

A copyright troll is an individual or a company that intentionally aggressively enforces copyright infringements for profit. While technically legal, their business practices are often seen as an abuse of the system. 

Unlike stock photography websites like iStockphoto and Shutterstock, who make money on licensing fees, trolls merely pose as stock photo websites. These companies’ main source of income comes from threatening those who unwittingly use their photos without a license. 

That’s right: they want you to commit copyright infringement, so rather than the cost of licensing a picture for a few dollars per year, they are hoping to land a bigger score from those who don’t know their rights.

Trolls often contact individuals or businesses claiming copyright infringement, often demanding immediate payment to avoid legal action. These demands are usually high enough to intimidate but lower than the cost of hiring a lawyer. Rather than filing a full lawsuit, they often pressure you into paying up quickly. The goal is to resolve quickly and profitably, regardless of whether the claim would hold up in court. They operate with threats and always try to create a sense of urgency. 

You can expect a troll to reject what you might consider a fair offer to settle, or a proposed settlement fee that is equal to what you would have paid to use the image had you sought a license at the time. That does not mean that you have to pay the outrageous fees demanded by the troll. Again, it is a matter of risk: are you likely to be sued? Do you want to incur the expense and bother of protracted demands?

The truth is, generally, the courts in Canada are unlikely to award more than the minimum amount of $500 per work infringed. They also have the discretion to:

• Reduce damages up to $200 per unaware infringement.
• Reduce damages below the minimal amount where one medium, like your website, contains multiple infringing works and the total award would be grossly out of proportion to the infringement.

Can a troll threaten your credit rating?

No. A troll's demand is just that - a demand, an unsubstantiated allegation of copyright infringement. It is only when the demand turns into a successfully concluded lawsuit with a judgment against you that this demand turns into a debt. 

How to avoid the Trolls

• Always get proper licenses for any images, videos, music, or software you use. The small upfront fee will be worth it in the long run.
• Save records or receipts showing you’ve obtained rights or are using royalty-free content.
• If contacted, consult a lawyer—don't pay or respond hastily.

If you find yourself in a potential copyright infringement situation, call our Business Advisors today (1-833-568-2342) to discuss your options. You can ask our Advisor to put you in contact with a LawVo lawyer for either advice or representation. Alternatively, you can call your provincial law society.