I have been told, by a very good authority, that the most a copyright owner can
claim in compensation is what the charge for the use of the image would have
been had permission been granted. This makes a risk assessment a much more
realistic and feasible exercise. I know at least one large museum project simply
set aside a contingency sum for settling copyright claims if they arose. Less
panic and more information may be helpful. Naomi do you know if this information
is correct?
best wishes
suzanne
on 10/9/08 11:28 PM, Museums Computer Group <[log in to unmask]> wrote:
> On Wed, Sep 10, 2008 at 9:00 PM, Jon Pratty <[log in to unmask]>wrote:
>
>>
>> I know from experience that it's no use using worthy-sounding phrases to
>> protect against copyright litigants. They will find an angle to get you if
>> they can...
>>
>
> Legally speaking, you're probably entirely right. I'm not even sure that
> there currently is even any provision for 'orphan works' within English &
> Welsh law (though I think they're working on it, see the Gowers review:
>
>
http://www.hm-treasury.gov.uk/independent_reviews/gowers_review_intellectual_pro
> perty/gowersreview_index.cfm
> ).
>
> The law is, I imagine, about far more than just the actual written laws,
> otherwise lawyers, courtroom theatrics and out-of-court settlements would
> never take place. If you're going to make a risk assessment, I think you
> should consider...
>
> a) the likelihood of a copyright owner finding out about their work,
> spotting that you've used it, and being then being unhappy with your
> publishing it. Especially if you've already made an effort to establish the
> owner.
>
> b) the likelihood that, if all the above were true and they did contact you,
> they wouldn't be satisfied with a speedy take-down, small payment or
> attribution credit. I'd guess that this would satisfy most people in most
> circumstances.
>
> c) finally the likelihood that, if a) + b) were true, they would actually go
> ahead and take you to court, despite all the bad publicity that would ensue
> from taking a noble public institution with public education as its aim to
> court. The media would surely be on your side!
>
> All this is, of course, a RISK assessment, and some institutions might not
> be comfortable with taking any risk at all, even if the risk is minuscule
> and the rewards are great. Also, the risks might vary from pretty unlikely
> to very very very unlikely depending on your circumstance - for instance I
> imagine that selling prints of an artwork that you think it out of copyright
> is probably more risky than taking an old family photo from 1962 whose
> family you can't trace and publishing a copy online in an educational
> microsite.
>
> My overall point is to encourage people to be pragmatic about these issues
> and to make judgements, as this is what big businesses, who are much more
> likely to be sued, do. I know from friends in the radio industry, for
> instance, that they break strict copyright law all the time, by playing
> clips of things they haven't been able to get permission for, or making
> shows available for listen again online without clearing 100% of all the
> necessary rights (which is nigh on impossible).
>
> I'm not saying you should ignore copyright law completely, but if you're
> working in good faith, for a good purpose, then I don't think you need to be
> too paranoid about the minutiae of what's technically allowable!
>
> Cheers,
>
> Frankie
>
> P.S all the usual disclaimers about not being a lawyer, this not being legal
> advise, or constituting an attorney-client relationship, blah blah blah,
> apply.
>
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