The recent black hole photo copyright controversy ended with Visual China being slapped with administrative penalties. In fact, in the domestic market, the picture “rights protection” business is not only visual China, most of the domestic commercial copyright picture service platforms have been exposed to a similar model.
For a long time, due to the lack of understanding of image copyright, many we-media and website editors directly obtain pictures quickly, conveniently and at low cost from search engines such as Baidu. However, such pictures often have infringement risks and are easy to cause a large number of infringement behaviors in their unwitting use. In order to maximize the benefits, the copyright side will also wait for the infringement of the number of pictures to accumulate to a certain extent, door-to-door rights protection.
In order to protect rights smoothly, most copyright picture service platforms will first inform the consequences of picture infringement very seriously when they send lawyer’s letters and picture infringing materials, and try to persuade and urge the infringing party to take the initiative to contact and negotiate compensation for infringement costs or buy their picture packages to solve the infringement problem. In the face of such an “urgent” lawyer’s letter, many We-media and smes often take the initiative to contact the copyright image service platform to negotiate and solve the problem. They have no choice but to pay high copyright fees or buy picture packages to solve the problem after being informed of the compensation scheme for similar cases in the past.
So, if the daily encounter picture “porcelain” rights protection should be done? The following is a picture copyright avoidance guide compiled by consulting lawyers for users to make reference.
The first step: designate special docking personnel to deal with
In this situation, the first thing to do is calm, calm, calm. Most copyright image service platforms often take relief measures after discovering infringement, mainly including:
1. Notify your Company by telephone or email on its own or through its agency, requiring your company to stop infringement, compensate for losses, make amends, etc.;
2. Entrust a law firm to send a lawyer’s letter to your company, in which its appeal is clearly stated;
3. Direct prosecution.
For the occurrence of any of the above situations, it is necessary to designate a special person (docking person) in the first time to take charge of the response, to avoid cohesion and poor communication due to multiple people handling, unclear division of labor.
Step 2: Identify infringements
1. Preliminarily verify the authenticity of the copyright and other infringement behaviors described by the other party, including:
(1) Whether the other party has prima facie evidence to prove the ownership of copyright;
(2) Verify whether there is indeed the infringement of copyright described by the other party, including whether the relevant webpage is still open to the public and whether the “infringement” can be found through the website search;
(3) Whether the other party has fixed the evidence for the infringement (notarization documents, screenshots and other relevant evidence can be requested).
(4) Based on the copyright registration materials provided by the copyright owner, check the work registration certificate on the website of the National Copyright Administration, and determine whether the information of the copyright owner and the date of initial public release/publication/production are inconsistent with the certification materials. (Note: According to the latest regulations of the Supreme People’s Court, the time of pictures as evidence of ownership of rights must be the date of first public publication/publication/production. It is not only based on the watermark as the photo author’s signature to identify the ownership of the right)
2. If infringement does exist, the source of the infringing material shall be further confirmed by the counterparty and classified as follows:
(1) Make and upload infringement materials by themselves;
(2) Infringement materials uploaded by a third party entrusted;
(3) Infringement materials uploaded by website users themselves.
The third step: delete the infringing material and choose the treatment method
1. After completing the identification of the infringement and confirming the existence of the infringement, no matter where the infringing material comes from, the infringing material should be deleted or removed first.
2. According to different sources of classified infringement materials, the following treatment methods can be adopted respectively:
(1) Self-production and upload network materials: need to bear direct and final responsibility, so need to take active measures.
(2) If a third party entrusts the uploading of infringing materials, it shall bear direct liability, and the third party shall bear the ultimate liability. Therefore, the best solution is to persuade the third party to intervene and take charge of the infringement dispute. Specific communication reasons include:
① It is suggested that the third party directly intervene in the dispute, strive to reduce the amount of compensation, and ultimately reduce their liability for compensation;
② Refuse to provide further services to the third party before the dispute is properly resolved. When the third party is unwilling or unwilling to actively intervene in the dispute settlement, it should still actively negotiate and communicate with the other party to avoid the risk of turning to the third party for liability and not being fully compensated.
(3) Website users who upload infringement materials by themselves: can invoke the “safe harbor principle” to avoid legal liability, but in the use of the “safe harbor principle” still involves the verification of whether to perform the corresponding management obligations, whether the final exemption is still uncertain, it is recommended to consult lawyers for case analysis.
Source: Stationmaster’s House
Source: Lu Songsong’s blog, welcome to share (QQ/ wechat: 13340454)
Source: https://lusongsong.com/info/post/11663.html