While a company plans to build a website or design some promotion materials, either the company or the third party entrusted by it would use some images. Some of the images may be made by the company or the third party, however, most of them may be downloaded from the internet, such as the Baidu Images and so on.
However, recently, Getty Images, Beijing Quan Jing Shi Tuo and some other image companies have filed lawsuits on copyright infringement continuously, which reminds the enterprises that “do not turn to be the next defendant”.
According to the relevant provisions of “Copyright Law”, despite the 12 categories of the “fair use” as stipulated in Article 22, such as personal study, report current events, scientific research and etc., for other usages, the user shall obtain the approval of the copyright owner, and pay the remuneration. In addition, when using other’s works, no matter for free or not, the user shall indicate the name of the author and the work. In view of this, if an enterprise uses images on its website or brochures without the authorization of the copyright owner, it may infringe the copyright owner’s the right of reproduction, the right of information network dissemination, the right of authorship and other personal rights or property rights related to copyright.
In practice, some enterprises mistakenly think that the images published on the internet, if there is not caution for prohibition of reproducing, then such images could be used at will; some other enterprises mistakenly think that in case such images are not used to make money, then such usages shall belong to the “fair use”. However, in the individual cases, the above mistaken thoughts would not be supported by the courts. For example, the defendant fails to prove that it has been not aware of the infringement by downloading and using the online images for free, in addition, even the defendant has downloaded the online images for free, but it still could not prove that it had obtained the authorization of the copyright owner. The images on the defendant’s website are used to introduce the defendant’s business, although, the website is a content provider, such usage could not be deemed as the “fair use” , which says the appropriate quotation from a published work in one’s own work for the purposes of introduction of, or comment on, a work, or demonstration of a point.” (Quoted from (2014) Pu Ming San (Zhi) Chu Zi No. 857 judgment)
In order to avoid such legal risks, the enterprises should establish the early warning system on the use of online images, which includes but not limited to:
Firstly, while using the online images for internal communication, it would be better to note the source and author of such images.
Secondly, while entrust the design company to design a website or advertisement, it would be better to stipulate in the contract that the design company shall use the images from legitimate sources, and shall not infringe other’s copyright; in addition, if any third party claims the tort liability to the enterprise, then the enterprise shall be entitled to require the design company to recover such loss.
Thirdly, while purchasing the copyright of the images, it would be better to confirm whether the seller has the relevant copyright, require the seller to provide the relevant authorization letter of such images, and keep the relevant bills and transaction records.
Fourthly, while using those images that the copyright owner is unknown, it would be better to make a statement on the materials with such images. For example, “we respect the legitimate rights and interests of the copyright owner, if you are the copyright owner, please contact us, we will arrange to pay the reasonable royalty fee. If you do not want us to use the images, please contact us, we will remove the images promptly. ”