Terence Eden filmed the above video demonstrating O2′s phone security flaw. He put it on YouTube with the standard copyright licence. And someone at Sky News ignored that when they used it without permission. But what’s interesting about Terence’s blog post about the experience is the legal position that Sky then negotiated from – an experience that journalism students, journalists and hyperlocal bloggers can learn from.
Here is what Sky came back with after negotiations stalled when Eden invoked copyright law in asking for £1500 for using his video (“£300 for the broadcast of the video [based on NUJ rates ...] £400 for them failing to ask permission, another £400 for them infringing my copyright, and then £400 for them violating my moral rights.”):
“After consulting with our Sky lawyers our position is that we believe a £300 settlement is a fair and appropriate sum.
“Our position is:
- The £300 is in respect of what you describes as “infringement of copyright” rather than any “union rate”;
- Contrary to what you claim, we did not act as if you had assigned us all rights. Specifically, we did not claim ownership nor seek to profit from it by licensing to others;
- Criminal liability will not attach in relation to an inadvertent use of footage;
- English law does not recognise violation of moral rights;
- There is no authority that an infringement in these circumstances attracts four times the usual licence fee. To the contrary, the usual measure is what the reasonable cost of licensing would have been.”
This sounds largely believable – particularly as Sky were “very quick” to take the infringing content down. That would be a factor in any subsequent legal case.
Notably, the Daily Mail example he quotes – where the newspaper reportedly paid £2000 for 2 images – included an email exchange where the photographer explicitly refuses the website permission to reproduce his photographs, and a period of time when the images remained online after he had complained.
These are all factors to consider whichever side of the situation you end up in.
PS: Part of Eden’s reason for pursuing Sky over their use of his video was the company’s position in pursuing “a copyright maximalist agenda” which Eden believes is damaging to the creative industries. He points out that:
“The Digital Economy Act doesn’t allow me to sue Sky News for distributing my content for free without my permission. An individual can lose their Internet access for sharing a movie, however there don’t seem to be any sanctions against a large company for sharing my copyrighted work without permission.”
An interesting point.