The Importance of Obtaining a Copyright Licence in the Age of PicRights and Pixsy

Authors: Zeinab Farhat & Gianluca Pecora, Progressive Legal

Within the last year, there has been an influx of correspondence being sent from copyright enforcement agencies such as PicRights and Pixsy. Such organisations are akin to debt recovery agencies and are engaged by copyright owners to pursue alleged infringements of their copyright.  

This market change makes it more important than ever to ensure all images used on your website and social media are properly licensed or owned by you. Understanding copyright and the importance of proper licensing is imperative to ensure that you reduce your legal risk when using images online.  

This article will outline the various strategies and considerations when using images you have sourced online, and to assist in reducing your risk of a copyright infringement claim being brought against you.  

Why do PicRights/ Pixsy contact people? Failure to obtain a licence  

The most common reason to be contacted by PicRights or Pixsy is the unlicensed use of copyright protected material. Many business owners are of the false view that because they have sourced a freely available image online, this means that the image is available for use freely. Unfortunately, this is not the case.  

Images are considered artistic works under the Copyright Act 1968 (Cth) (“the Act”). As such, copyright owners have the exclusive right to reproduce, publish and communicate their artistic works pursuant to s 31(1)(b) of the Act.  

A copyright licence permits you to use an image on specified terms, which may outline duration, permitted uses, geographical reach, jurisdiction and exclusivity of use. Without a copyright licence, the copyright owner of an image has a range of relief available. Typically, a copyright owner will request payment of a licence fee (as is the case in correspondence sent by organisations such as PicRights).  

Essentially, if you have sourced an image online on the view that it is being “licenced” to you, it is vital that you review the terms of that licence in detail. This is especially important as some “free to use” sites actually place limitations on use of the content for commercial purposes.  

It is also important to be aware that copyright licences are often granted only for a specified period of time. Many businesses have recently been caught out for accidentally using images which have an expired licence. PicRights and Pixsy will also target this type of unauthorised use, so it is crucial to ensure all licences are renewed and images are removed from websites and social media once a licence expires. 

In assisting in the assessment of legitimacy, it should be noted that we have even recently seen a matter escalated to a top tier law firm which began with correspondence sent by Picrights. 

Open content 

Creative Commons (CC), Free/Libre Open Source Software (F/LOSS) licences and the SIL Open Font License all grant open content licences to the whole world to reuse copyright material on specified terms. An additional copyright licence will most likely not be necessary if an image has one of these open content licenses. 

However, even if you are using an image under a CC licence, you might still be at fault if you do not correctly provide the required attribution. In any event, it is imperative to review the terms of these licences to confirm any limitations on use. 

Flagrancy of infringement 

If a copyright enforcement agency contacts you to remove an image, it is important to do so urgently unless you can prove you hold a valid licence. If you keep the image up, despite the provision of correspondence being sent to you which puts you on notice of the infringing conduct, the flagrancy of such conduct (in not removing the image) could be considered in the assessment of additional damages as per s 115(4) of the Act, should the matter be escalated.  

Are there defences available for use of such material? Fair dealing exceptions 

The Act provides fair dealing exceptions for research or study, criticism or review, parody or satire and reporting news. 

However, in Australia these exceptions are read narrowly. For example, the fair dealing exception “for the purpose of research or study” does not broadly cover all educational purposes. This defence is used only in the context of educational institutions like universities and schools.  

Whether it be licencing fees or copyright enforcement agency fees, you can save lots of money by getting advice from an intellectual property lawyer on whether your business fits within a fair dealing exception. As noted, these exceptions are very narrowly applied and rarely litigated. Even if you consider your conduct to be captured within such a exception, it is always best to obtain legal advice.  

Key takeaways

The rise of copyright enforcement agencies, such as PicRights and Pixsy, has significantly increased the risk associated with unauthorised use of copyright images on your business’ website and social media. 

Below are some key takeaways for you to consider when sourcing and using images on your site:  

1. to mitigate this risk, it is crucial that you obtain a copyright licence when using images from the internet;  
2. even images provided under a Creative Commons licence require correct attribution.  
3. if a copyright enforcement agency, such as PicRights and Pixsy, contacts you, it is important to immediately remove the copyright image to mitigate the risk of additional damages; and 
4. the fair dealing exceptions apply far less often than businesses assume. Legal advice is crucial if your businesses currently operates under the presumption of protection within a fair dealing exemption.  

The ownership of copyright is complex and, increasingly, businesses are being caught out by copyright enforcement agencies like PicRights and Pixsy. We regularly advise clients in relation to these matters, including where the matters have been escalated to law firms for further enforcement.  

We have helped almost 3,000 Australian small businesses over the past 8 years with a range of IP legal services.  

To identify whether your business requires a copyright licence and/or if you are seeking advice on how to respond to copyright organisations such as PicRights or Pixsy, contact our experienced intellectual property lawyers by giving us a call on 1800 820 083 or request our advice today.