My company hired an external web designer to create our corporate website. The website was designed to our satisfaction. Subsequently, a third party sends notice to my company that it is the copyright owner of the pictures used in our corporate website. It claims that copyright infringement has taken place, because the pictures from its website have been taken and used without permission.
a. Can the third party take action against my company for copyright infringement committed by the external web designer?b. Is it possible to reduce my liability in such situations? c. How do I check whether I am permitted to use a copyrighted work found on someone else’s website for my intended purposes?
a. Artistic works, such as photographs, pictures and drawings are protected by copyright. This protection continues to exist where artistic works are distributed and shown over the Internet. You cannot assume you have permission to use the pictures even if the pictures have been posted on a website.When someone saves a copy of a picture from a website onto his or her computer, a reproduction of that picture is made. The act of making a reproduction of the picture without the copyright owner’s permission potentially infringes the owner’s rights, subject to fair dealing and other exceptions. Subsequently, when he or she uploads that saved copy of the photograph onto his or her own website without the owner’s permission, he or she is potentially infringing on the communication rights of the copyright owner, subject to the same exceptions mentioned above. By engaging the services of the external web designer, you may also be liable for any infringing acts the web designer commits in creating the website, if it can be shown that you have authorized the infringing act. Whether or not you have authorized the infringing act will be determined by the courts, on a case by case basis with reference to the facts presented. For example, if you had knowledge that the external web designer was intending to infringe copyright, you could be found to authorize the infringing act. When your company receives a letter accusing it of infringing someone else's copyright, you should obtain the relevant facts and seek legal advice. You can consider settling disputes through other means instead of going to court. For instance, where infringement has occurred unintentionally, both parties may find it more useful and cost- and time-effective to negotiate a private settlement out of court. They may also wish to seek mediation services, such as those provided by the Singapore Mediation Centre. b. There may be an element of risk when companies hire external vendors to create copyrighted works, since they may not have entire control over the actions of such vendors. During the negotiation phase, companies should make clear to their vendors that copyright must be respected. If the vendor uses copyrighted material (e.g. photographs, graphics, text etc.) to create the websites, written approval from the relevant copyright owners should be obtained. As far as possible, all such correspondences should be reflected in writing. Companies may wish to keep a copy of all relevant consents in their records. Companies may also wish to engage the services of a lawyer. A lawyer will be able to advise the company on ways to limit legal exposure, for instance, by advising on steps to obtain IP clearances, inserting appropriate indemnities by the vendor and other contract provisions that limit exposure. c. Many websites contain terms of use, which may include what can or cannot be done in relation to the material found on a website. If the terms of use do not cover your intended use, you should contact the website owner and seek permission from the relevant copyright owners (which may or may not be the website owner). If the website’s terms of use do not cover your intended use or the website owner does not respond to your request for use, it may be better to seek other alternative sources of material. The consequences of infringing someone else’s copyrighted work, even if accidental, may not be worth the risk.