Shut the door on your way out, Cicero…

I had a client contact me a few months ago with concerns over a website that had, by all accounts, unceremoniously airlifted in huge great quantities of their written content. What upset them most was that, by using it as a vehicle to sell their own wares in the same marketplace, this third party had the potential to gain financially from the same content they had felt the need to hire a professional to craft.

Now, far be it from me to advise on exactly what to do when a client asks what the next steps are in this kind of situation (and it goes without saying that if the client has a legal department then gladly hand over all your findings to them), but before we begin to entertain the prospect of infringement proceedings and mounting legal costs surely there’s a polite and civil way to go about resolving these things?

The automatic right

In the UK (and indeed most other parts of the world) there is no official registration system for copyright. It’s an automatic right that’s bestowed upon the author or creator when a piece of work of physically written or created.

The law states that a copyright holder has the right to

• make copies or reproduce the work for the purpose of selling
• import or export the work
• make changes to the original work
• display the work publicly
• assign or sell the rights to someone else

And though a website in its complete form cannot be considered for copyright, its individual content elements can be protected as

• Literacy works – such as written content, code, and database data
• Artistic works – including photographs, diagrams, and other artworks
• Recordings – such as audio and video content

What the law doesn’t protect you from is minor or ‘insubstantial’ copying. I was already aware that there is little or no protection for the ideas or facts which are represented in a work, nor for that matter is there for very minor work such as an individual title, headline, or even a tweet. But at what point does insubstantial end and substantial begin?

The Intellectual Property Office, the official UK government body responsible for copyright matters, states that:

A substantial part has been interpreted by the courts to mean a qualitatively significant part of a work even where this is not a large part of the work. Therefore, it is quite likely that even a small portion of the whole work will still be a substantial part.

After careful consideration and study the client and I both felt that if this third party company were deliberately using the written content to make clear financial gains then they at least had a case to answer.

Contacting the site owner

I’ve enjoyed some success in the past during these emotionally-charged embryonic stages of a copyright infringement claim simply by helping the client shape a polite but firm email (it’ll always carry more weight coming from the website owner rather than a representative) that informs the third party company that we’ve noticed content on their website has been directly copied from the client’s. Don’t hold back with the details either. Clearly state the occurrences where content has been duplicated, using comparisons with the client’s website where necessary. You could even attach some screengrabs to illustrate the points.

Why are we striving for this level of detail if they already know where the content originated from? Well, let’s not forget that the recipient of this email might be as surprised as you to learn that their copy has been lifted from elsewhere. They could just have easily hired a copywriter who took quite a shine to your client’s website. Try not to sound triumphant, cocky, or take the moral high ground to such an extent that you’re perched atop Kilimanjaro.

I’ve found offering a seven-day window to either remove or make significant changes to the content tends to suffice, with the added warning that you will be contacting their web host if they fail to carry out your request. Web hosting companies are usually very helpful and don’t want the negative publicity that comes with one of their hosted sites openly infringing on someone’s copyright.

After a few days of radio silence you may decide that a follow-up telephone conversation between the client and the third party company, in which they reiterate what was said in the email, might be in order. This leap of faith can help to humanise your request as well as making it abundantly clear how seriously you’re treating the matter. Again, tone is important. Don’t let them approach it too aggressively. If there’s any danger of that then stick to email, where it’s not nearly as easy to convey emotion.

No luck? Contact their web host

If after seven days you don’t hear anything back from the other party, or your calls are being met by answering machines messages, dial tones, or the faint sound of tittering then you’ll just have to get started on the email to their web hosting company. There are some great tools available which can help you work out who to get in touch with.

Detail your findings once again as well as your so far unsuccessful attempt(s) to contact the third party company. At this point it’s always worth having a look at the business terms and conditions listed on the web host’s website. What you’ll often find is an item that reads something like:

The Customer shall not, nor knowingly permit any other person to, use the Services to display or use any material which is infringing of any obligation as to confidential information or copyright or any other Intellectual Property Rights.

You could always politely remind them of this particular passage.

And when all else fails…

Thankfully I’ve always managed to help clients amicably resolve all cases of copyright infringement without the need for legal aid. Often it’s been nothing more than a case of opportunism or laziness on their part. But if you find that you cannot resolve the matter with the other party, or their hosting company are equally unhelpful, then by all means call in the experts. At least if it does end up in court your attempts to solve the matter through mediation will not go unnoticed.

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