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

Fred Swanson

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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.