Best Practices for Copyright Enforcement Services
- The service acts in good faith with rights owners (clients) and claim recipients and in a professional and courteous manner that protects and respects the value of copyright while ensuring that claim recipients are treated fairly. All of the best practices outlined below should be followed for each claim.
Pre-Claim Due Diligence
- The service takes reasonable steps (both technological and manual) to ensure that content match is accurate – i.e., that it is in fact their client’s content being used and not similar content and take reasonable steps to determine that it is a valid claim to pursue (for example, it is not fair use / fair dealing).
- The service only enforces rights in content distributed exclusively by the client or where the client has the ability to track all uses of the work (including allowed sublicenses and assignments).
- The service takes reasonable steps to confirm that there is no license before sending out communications.
- The service takes reasonable steps to confirm accurate name, physical address and email address for the claim recipient.
- The baseline for the demand amount is based on industry/client standard fees for licensing the same usage that is not determined arbitrarily, with a reasonable demand for applicable costs incurred by the client that is not grossly disproportionate to the baseline fee.
- The service takes the applicable licensing model used by the client for the content (i.e., RM/RF) into account in enforcing rights, and in particular addresses practical concerns with determining accurate usage history with RF content.
- Send standard (form) communications to claim recipients by electronic and physical mail if current address information is available and notwithstanding events that may affect the mail such as COVID-19 (email sufficient once recipient is engaged in communicating with the service).
- Include name of individual acting on behalf of the service, along with phone number, email address and the service’s physical address in all communications.
- Standard communications clearly state that the service is not a law firm and the signatory is not a lawyer if communications are from non-lawyers.
- In any territory where it is feasible to do so, the service will use its best efforts to send out at least one communication itself to the claim recipient before referring the matter to outside legal counsel unless outside legal counsel recommends otherwise.
- Communications use plain language that is easy to understand for people unfamiliar with copyright and avoid using legal jargon.
- Communications clearly set out the basis for the claim and the demand amount and include proof of the allegedly unauthorized use of the content so that the claim recipient can easily identify the content and where it is located.
- Communications are accurate and do not include unnecessarily threatening language, such as threats to immediately initiate litigation.
- The service communicates with the recipient via the recipient’s stated preferred method so long as that method is not being requested arbitrarily or in order to intentionally cause hardship or delay for the service and its clients.
- The service responds to communications from the recipient in a timely manner.
- The service escalates the claim to the service’s lawyer, if requested by the recipient on legitimate grounds.
- Unsolicited phone calls are not made to claim recipients outside of normal business hours and phone calls are made in compliance with all legal requirements in the applicable jurisdiction, such as privacy and anti-spam laws.
- Underlying agreements with individual content creators, copyright registrations and other relevant supporting materials are provided to claim recipients upon request, without undue delay or pushback.
- The service will review a recipient’s website to determine if any of their clients’ other content is being infringed upon request (i.e., in addition to content addressed in the communications).
- All communications are only directed to the claim recipient’s lawyer as soon as service becomes aware that the claim recipient has retained legal counsel.
- The service is transparent regarding the status of a claim.
- Communications refer to letting the service know if the claim recipient believes they have a valid license to use the content.
- The service promptly provides written confirmation (email is acceptable) that a matter is closed after receiving proof that the recipient had obtained a valid license to use the content.
- The service updates its internal systems after receiving proof that the recipient had obtained a valid license to use the content, to ensure that the service avoids similar incidents in the future.
- The service engages in fair and reasonable practices regarding dispute resolution with non-client licensing agencies (i.e., not making legitimate licensees jump through hoops for claim recipients to confirm their rights).
- Website for the service includes accurate and comprehensive information about who they are and what they are doing along with contact information for the service (phone, email and physical address).
- Website includes an FAQ section (or something equivalent).
- Timely compensation paid to clients (agencies and individual content creators) within 30-45 days following the end of the month when fees are collected.
- If the client is a press or stock agency acting on behalf of many different content creators, the service has reviewed standard agreements to ensure that their clients have the necessary assignment / exclusive license rights (i.e., standing) to assert claims on their behalf.
- The service understands that its actions and communications reflect on the client’s brand, and acts accordingly.
- Willingness to take the claim recipient’s financial situation into account in resolving claims.
- Flexibility to reduce settlement amounts for not-for-profit operations (particularly small-scale operations).
- Standard settlement agreement uses plain language that is easy to understand for people unfamiliar with copyright and avoids using legal jargon.
- Standard settlement agreement includes a release for all past use of the content at issue.
- The service provides different options to pay for the claim, including by check if requested.
- The service takes the circumstances of the infringement into account in addressing and resolving claims, including if the recipient was on notice of the client’s rights in the work or there was a good faith believe that the use was a fair use.
Escalation to Lawyers
- The service takes reasonable steps to ensure that lawyers they are working with in various territories are experienced in copyright law and act in an ethical manner in handling claims, including not making illegitimate/baseless payment demands, being responsive to alleged infringers and providing alleged infringers with a fair and reasonable opportunity to resolve the claim before litigation is initiated.