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Welcome on the front page – but not on the internet

July 2011 - Intellectual Property. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

A newspaper was not entitled to post photographs on the internet although the original agreement entitled the newspaper to keep and use the photographs.

In this case, the UK Court of Appeal was asked to consider whether a licensee – with the right to publish copyrighted material in its newspaper – was also entitled to post the publications on the internet.
In 1981, a freelance photographer agreed with a major UK newspaper publisher that it could print his photographs in its newspapers. He retained copyright. The agreement was never put into writing. After about 16 years, the photographer terminated the agreement with the newspaper publisher.
The internet – a new form of exploitation
The newspaper publisher later wanted to make old copies of its newspapers available to the public via a digital archive. When the photographer learned about this, he went to the courts. He did not want his photographs online although the parties had agreed that the newspaper publisher was allowed to exploit the newspapers containing the photographs it had acquired while the old agreement was in effect – for instance, by having the old copies of the newspapers on archive.
The UK courts held that the case was a matter of interpretation of the original agreement. But since no written agreement was available, the deciding factor became whether the digitalised use of the photographs falls within the scope of exploitation which the parties could reasonably have foreseen when the agreement was made. The courts did not believe that this could be said for agreements dating back to between 1981 and 1997.
Norrbom Vinding notes:
  • that the case would most likely have had the same outcome if it had been presented to the Danish courts because the so-called speciality rule would have been applicable; and

  • that, as far back as in the late 1990s, the Danish Union of Journalists and the Danish Newspaper Publishers’ Association agreed that Danish publishers can post material on the internet which is created by journalists and photographers in their employment.
The above does not constitute legal advice and should not be relied upon as such

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