What to do when you’re accused of copyright infringement online

Authors: Adam Lakusta, Lorraine Pinsent

Have you used images you found online for your website? The implications of copying and pasting an image onto your personal or professional website may constitute copyright infringement and can have far-reaching implications.

Gone are the days when people could commit copyright infringement online with impunity.  Previously, reproducing copyrighted works (including images, videos, text, etc.) was easy to get away with online, but now organizations have been patrolling the internet to locate instances of copyright infringement.

While some organizations scour the internet themselves for alleged infringement, others use online copyright searching and enforcement services. Currently, the largest organization offering these services is PicRights.

Organizations such as PicRights use algorithms and artificial intelligence to crawl webpages and identify instances of copyright infringement. PicRights flags potential infringement and forwards it to their clients. If clients wish to pursue the potential infringement, alleged infringers are contacted and provided with the option to settle the dispute by paying a monetary sum. While the monetary amounts demanded by PicRights vary depending on the scale of the alleged infringement, they commonly range from hundreds to thousands of U.S. dollars.

To avoid getting hit with an unexpected demand for settlement by PicRights, you must understand the scope of copyright, what constitutes copyright infringement and what is considered fair dealing.

What is copyright?

Copyright is an intellectual property right recognized in the law that extends automatically to the expression of ideas in a material form. The meaning of “material” includes literary works, artwork, songs/poetry, news articles, architecture and design, computer code, performances, radio broadcasts and numerous other forms of expression.

In Canada, copyright is governed by the Copyright Act. By virtue of international treaties and conventions, copyright is recognized in almost all countries.

What is copyright infringement?

Copyright infringement occurs when a copyrighted work is reproduced, or substantially reproduced, without the permission of the work’s copyright holder. Within the meaning of the Copyright Act, featuring copyrighted works on a website constitutes copyright infringement.  Even if you have properly attributed authorship (i.e., you identified the source of the original work), if a work is reproduced without the consent of the copyright holder, the reproduction still infringes.

Exceptions to copyright infringement

Exceptions to copyright infringement exist and are referred to as “fair dealing” in Canada. Fair dealing applies to research, private study, criticism or review, news reporting, education and parody or satire.

To ensure works that are for the purposes of criticism or review and news reporting are protected by fair dealing, it is necessary that the source be attributed, and if provided, the creator/author of the work referenced.

As held by the Supreme Court of Canada in CCH Canadian Ltd. v Law Society of Upper Canada, other factors to be considered when determining whether fair dealing applies are: (1) the amount of the work reproduced, (2) whether the reproduced work is being distributed to others and (3) whether the reproduction of the work could harm the sales or potential sales of the original work.

What to do when PicRights claims you have infringed copyright

Aside from clear instances of infringement, such as those involving the reproduction of entire images, copyright infringement is not a black-and-white issue where infringement can be easily determined. PicRights can only identify cases of alleged infringement.

The main issue with the sums requested for settlement with PicRights is that they are often, when taken individually, too small to warrant significant action. If you obtained permission from the copyright owner, then providing PicRights with a copy of that permission will suffice. If you believe that you have not infringed anyone’s copyright or believe your use is captured by the fair dealing exception, then you should consider contacting PicRights directly to discuss the matter and negotiate payment of a lower sum if possible.

If you are unable to come to an agreement with PicRights, you may want to consider contacting legal counsel to discuss your options. It is not recommended that you avoid this matter. Once PicRights involves its legal counsel, the sums requested get substantially higher — typically about two to three times higher than the original sum requested.

The MLT Aikins Innovation, Data & Technology team provides copyright infringement opinions and advises clients on copyright registrations and portfolio management, as well as drafting development, licensing and assignment agreements. Please contact a member of our team for more information.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.