How to avoid copyright infringements when providing content to your website?

Images and other content that is publicly available on the Internet are also protected by copyright. All too often we are contacted by people who have received a hefty invoice from an angry  (rightly or wrongly) photographer because they copied his image on their website without permission. The photographer works hard to make a good picture and often makes considerable investments to do so. He therefore wants to oppose any unlawful use. However, the photographer is not always right. Sometimes the photos are not protected by copyright and, under certain conditions, you can use them on your website without having to ask permission. However, this is subject to a number of conditions… We summarise the rules for you here.

 

Ask permission as a rule of thumb

In order to enjoy copyright, a work does not have to comply with any formality. Nor does it have to be in a particular form or even be considered to be “beautiful”. There are three conditions for a work to be protected by copyright:

• It must be a creative activity. This may be interpreted very broadly. Every creation of the human mind can be protected. Whether it is a vlog, a song, a blog or a photograph, it does not matter. However, a photograph taken by an animal is not protected. This was shown in a discussion about this selfie of a crested macaque. A gemstone that you might find in nature will also not be protected. A photograph or drawing of that same gemstone might be protected if it meets the following two conditions.
  
• Ideas, concepts and methods are not protected by copyright. The work must be expressed in a concrete form. This does not necessarily have to be in a tangible format such as a book or a painting. It can also be a blog that only exists on the Internet or even an improvised street concert that ends when the last note is played.
  
• At the latest, the work must be original. Much has been said and written about this subject, but it ultimately boils down to the fact that you must be able to see the artist’s contribution to the work. If someone else had taken the picture, for example, it would not have looked the same. The author’s contribution can be seen in the choice of lighting, the size of the work, the colours used, the settings on the camera, and so on.

When we talk about photos on the Internet, there is often discussion about this last point. Practice shows that courts are reasonably quick to accept that a work is original. For example, a photograph of a natural landscape or even a gemstone may be protected by copyright. In that case, you may not just cut and paste the photo on your website.

The rule of thumb with copyright protected works is that you always need permission from the author before you can copy the work. Sometimes, however, the author stipulates in his general terms and conditions that you may use the work under certain conditions. For example, only in a non-commercial context. There are exceptions to this principle, which are discussed further below.

 

Sharing is not multiplying

But there are exceptions: hyperlinking, embedding and similar practices. If you use these correctly, you can place protected content of others on your website without permission or compensation. This exception has been confirmed many times by the courts.

The hyperlink is well-known to everyone. You simply share the location of a piece of content on the Internet with a link. Your website visitors can click on the link and are then transported to the referenced website. For example, above we referred to the selfie of the crested macaque via a hyperlink. 

Embedding also means that you refer to a piece of content on another website, but that content is directly visible on your website. Many online platforms even facilitate this, for example YouTube, Instagram and Twitter. However, it is not a requirement that this is facilitated. Someone with a minimum amount of technical know-how can embed almost any piece of content on a website, unless the website owner makes it impossible.  

With both hyperlinking and embedding, the content remains on the original server. A consequence of this is that when the photo is removed from the original server, it is also removed on all websites that have embedded the photo. 

You can check whether a photo is embedded by right-clicking on ‘open image in new tab’. In the link at the top you should then see the location on the original website. If the photo was downloaded and uploaded, then it is not embedding, but simply copying. In that case, the exception does not apply. You have to be careful here, because some CMS tools automatically copy the content to their own server when you upload it to your website. In that case, there is also a copy and you cannot rely on the exception.

 

Limitations

Embedding and hyperlinking are not a licence to do whatever you want without restraint. There are a number of restrictions that have been developed over the years in case law:

• You are not allowed to share illegal content. In principle, you cannot share a photo that has been placed on the Internet without the permission of the rights holder. So you are not allowed to embed a video that has been placed online through piracy. The courts are stricter in this assessment if it is abundantly clear that the content was placed online without the permission of the rights holder. This is likely to be the case with a piracy website. In addition, there is a presumption that someone with a for-profit motive would be more likely to be aware of the lack of permission than an ordinary private individual.
• You may not link to content that is behind payment walls or other barriers. This condition speaks for itself, of course. The copyright holders take active steps to prevent the content from being shared. For instance paid articles on the website of a magazine or paid photographs from image banks such as Shutterstock, Getty Images, etc.
• You are not allowed to edit the content. This condition is also obvious, but in practice it can sometimes cause problems. Many artists have no problem with their works being linked to or embedded. This way, they get more visibility on the net. However, this increased visibility is cancelled out as soon as their picture is edited. Many artists therefore take technical measures to prevent this. For example, they place a watermark on the photo or stick an informative bar with their details to it. If someone then wants to embed the photo on their website, this information is available anyway. Some website owners try to get around this by editing the photo in such a way that this information is not visible. In that case, the exception does not apply.

 

Checklist for correct use of content

You are providing your website with entertaining content, what should you pay attention to? In the checklist below, we list the focus points and the consequences of each point:

• Copyrighted content. This is rarely a done deal. Prevention is better than cure, so it is best to assume this and ask permission from the rights holder. By the way, by asking permission explicitly from the author, you avoid 99% of all problems. Even if you only use hyperlinks and embedded content.
• Illegal content. If you have a website with a for-profit motive (very broad criterion, you don’t necessarily have to sell something), then you have to investigate this thoroughly. If the content is illegal or you have doubts, do not use it. If you are sure that the content was put online with the required permission, then you can probably use it.
• Terms of use. For example, conditions in the general terms and conditions or a Creative Commons licence. If there are terms of use, you must take them into account when using the content. For example, the author may prohibit you from using his content for commercial purposes.
  
• Restrictions. If the rights holder has built in certain (technical) barriers, such as a paywall, you cannot share the content. When an explicit HTML code is provided, as with YouTube, sharing is facilitated.
• No editing. In principle, this is impossible when embedding or linking to content. If this is somehow possible, the exception does not apply and you may not share the content.
• Sharing is not multiplying. You may not copy-paste the content, download and upload it, take a screenshot and post it on your website, etc. The content must remain in its original place and you may not make a copy of it.

 

Do you still have questions about Internet law, copyright or intellectual property law in general? Please do not hesitate to contact us via bart@siriuslegal.be or +32 2 721 13 00. 

This article was written by Matthias Vandamme who has left our firm a while ago.