The original post was written in 2014 on Creativeblogs.net and appears here edited and updated.
My first experience of the law in relation to copyright happened about 8 years ago as a classroom teacher. My class were engaged in a stop-motion animation project making a film about the myth of Daedalus and Icarus. When it came to choosing a suitable soundtrack they were adamant that they wanted to use R Kelly's "I believe I can fly." This prompted a discussion on the fact that the piece was copyrighted and we couldn't use it for our film as it was going to be shown in a public film competition. The class dug their heels in so, never one for passing up the opportunity for writing with real purpose, we wrote a letter to the music publishers in our best handwriting asking for permission. The reply was short and to the point: "You can't use it, and if you do we'll sue you," was the gist.
Since then I've set up Creative Blogs and whenever I talk to schools about blogging I'm always careful to mention the need to adhere to copyright law. Here's a post I wrote on the subject last year. The message doesn't always sink in.
Many teachers still seem to be in a world in which they think that if it's used for educational purposes then using someone else's work is fine. The end of term film on a Friday afternoon will almost certainly be a breach of the licence terms of the DVD shown. Much of the photocopying that goes on of resources may also be in breach of copyright as will the playing of pop songs in class assemblies and so on (note, the Performing Rights Society licence only allows for commercial music played in the background, not as part of a performance). The fact that this has gone on within the school itself has meant that it has largely been unchallenged so far. Putting uncredited images and other media on a school website or blog, however, places such behaviour into the public domain and risks action being taken by the owner of the rights.
Over the years we can cite several examples of notices we've received from copyright owners requesting us to take down images from blogs that have infringed. One that springs to mind was a post written by a girl about sharing Sunday lunch with her family. In order to illustrate this lovely piece of writing she found a picture of the perfect Sunday lunch on the internet. Unfortunately, the image in question came from a well known chef's website and we received a "take down" notice threatening further action if we didn't immediately comply.
Our response in such circumstances is to simply remove the media in question and inform the school of what has happened, hoping that they'll take the cue and educate teachers and children alike. We're not in a position to take a moral stand and argue that the image was used for educational purposes by a child and that for the greater good such use is justified; we can't afford the lawyers!
Until now, such action has proved to be sufficient. In the last two years we know of at least 8 schools receiving legal letters and an accompanying £800 bill from the law firm representing a large media company claiming breach of copyright. In one instance an investigation showed that, yes, copyright had indeed been breached and we immediately removed the offending post (again written by a child). The accompanying legal threat, though, is quite clear: removing the image is not sufficient and that the copyright owners are seeking recompense for the infringement of their rights.
This situation is familiar to the filesharing community. Law firms have made large sums of money on behalf of music and film companies by sending out speculative bills for sharing illegal downloads of media. What seems clear is that this legal bill is a similar speculative affair. The school could (and should) apologise for the breach, demonstrate that the work had been taken down and show that they have systems, policies and curriculum in place to prevent such circumstances occurring again. They could then decline to pay the bill arguing that the action taken was in proportion to the offence. However, the government guidelines on copyright infringement clearly state that it is for the aggrieved party to decide upon the remedy and if they do not agree with the school's course of action then they can ultimately ask a court to decide upon the matter. Any case is likely to be decided on what action the offending institution took, and what size audience was the breach exposed to. In the case of a single blogpost by a child it could be argued that the audience was very small and the resulting fine would be reduced accordingly, but there is still the matter of legal costs. It's worth noting that by placing the item on the internet the clear intention is to gain maximum exposure for the blogpost and therefore companies tend to aim for a high fee when seeking recompense. Arguing proportionality might not get you very far.
In most cases, unfortunately, seeking legal advice and negotiation might well be the path taken. Anecdotally, I'm hearing that when companies have received such demands from media rights holders a fee is nearly always negotiated. After their relative success against sharers of music and film there has been much talk of other possible revenue sources for law firms representing media companies and there is no doubt that schools are seen as soft targets here. Again, no matter what your opinions about the morality of businesses going after schools for payment for infringement of rights, schools do have to comply with the law as it stands. Such corporate behaviour does include some reputational risk in this day and age of social media and comparisons to wheel clampers would not be welcomed. Nevertheless, without wishing to scaremonger we hope that the legal threats received are isolate cases and not the opening salvo of a war.
So what to do?
- Make sure that any media policy that the school employs includes reference to the use of copyrighted material on websites and blogs making it clear that all media displayed on such sites will comply with the relevant licencing terms;
- Teachers should regular receive advice and possibly INSET on how to ensure that any media used on a class blog complies with licencing requirements;
- The school's curriculum includes lessons for children on copyright, fair use and public licence schemes such as Creative Commons;
- Where possible, check blogs and websites for unattributed images and remove any you aren't sure about;
- If you receive a demand for payment seek legal advice.
What we do to protect you
Our role is largely one of advice and education. We cannot accept responsibility for what your teachers and children upload to blogs. However, to mitigate the possibility of breaches of copyright occurring we don't allow children to upload media direct to one of our blogs.
This is for three reasons:
- The teacher has no quick way of telling if the image uploaded by the child is licensed for re-use or not;
- If they upload personal pictures of their family and friends there is no way of telling if permission has been sought from the individuals in the picture (a privacy rather than copyright issue);
- It’s impossible to restrict image uploading to in school only and thus prevents children or their siblings uploading inappropriate images out of school.
Having said that, we do want children to learn about copyright and believe strongly that it is an integral part of any comprehensive digital literacy strategy. Children can embed images into blogs from other sources. To that extent we are big advocates of the use of Creative Commons licensing in school and using tools such as Photopin and Compfight to search for appropriately licensed images from the Flickr database.
Help Centre article on why children can't upload images. Blogging with Flickr How to embed a suitably licenced image from Flickr To book CPD on Creative Commons, copyright and use of Flickr etc, please get in touch. I would like to acknowledge Chris Ratcliffe's and Ewan McIntosh's advice in writing this blogpost.
Update, 8th Jan, 2014, 1710. We've just heard that the media rights holder in question has agreed to waive the bill. When we find out more information about the decision we'll share it. However, we would counsel against assuming that this will always be the case. Beware!