The recent UK case of Hoffman v Drug Abuse Resistance Education (UK) Ltd  EWPCC 2 (19 January 2012) provides a number of important reminders for those who design and own websites, including public sector agencies.
It’s an interesting tale about a website owner who copied photos from another website in the mistaken belief that they were Crown copyright photos that could be re-used without permission when, in fact, they could not. There’s a photographer, a charity, a web developer, a government-sponsored website, the photos and… a copyright infringement claim.
Briefly, the main facts appearing from the judgment are these:
- Mr Hoffman was the copyright owner of a range of photos of drugs;
- the defendant charity published copies of those photos on its website;
- the defendant had used a web design firm to produce its website;
- that firm had found a Government sponsored website called “Talk to FRANK” on which the photographs appeared;
- the defendant understood that the site was covered by Crown copyright and that the images could be re-used when, in fact, they could not; the photos were not Crown copyright;
- the Department of Health acknowledged the site was not clear and tried to pursue the matter on behalf of the defendant (and others) but without success;
- Mr Hoffman brought proceedings against the defendant for copyright infringement.
The defendant’s position was that it “had not intentionally or knowingly infringed [Mr Hoffman's] copyright” and “the Department of Health and their misleading web site were the cause of any infringement”.
The Court decided that the defendant was in fact liable. The fact that the defendant may have thought that it had permission to use the images was not a defence to infringement under the relevant provision of England’s Copyright Designs and Patents Act 1988 (on which, incidentally, a good deal of New Zealand’s Copyright Act 1994 is modeled). Similarly, the fact it had employed a firm to produce the website did not enable the defendant to avoid liability.
The defendant could also not rely on section 97(1) of the Act which states that “[w]here in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.” (Section 121(1) of New Zealand’s Copyright Act is almost identical to this.) The court sympathised with the defendant but held that the facts did not support reliance on this defence:
“The defendant understood it had permission under what it understood to be the relevant copyright. That is a very different thing from an argument that the defendant had no reason to believe copyright subsisted at all … . To believe that one had permission under (in this case) Crown copyright is the opposite of a belief or reason to believe that there is no copyright in existence.”
The court awarded damages, interest and costs in favour of Mr Hoffman.
The case serves as a reminder for a number of players in the web industry, including (on the facts of this case) public sector agencies:
- web designers need to be careful when suggesting to clients that they can reuse copyright images or other copyright content from other websites; without permission from the true copyright owner, such content should not be re-used;
- if in doubt as to whether third party web content can be re-used, the safest course is to get in touch with the site owner (or, if it’s clear that the content comes from another source, that source);
- public sector agencies need to be careful when describing the copyright status and re-use permissions of copyright content on their websites because, if they get it wrong, they can expose members of the public to risk at the hands of the true copyright owners (and could themselves be the subject of challenge or feel at least ethically obliged to assist those who have unwittingly upset the true copyright owners); and
- website owners need to be careful to ensure, when using third party copyright content on their websites, that sufficient rights clearance processes have been followed (unless they are happy to run the risk of a claim of infringement).