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Case description

  1. a person in the European Union (not US) collects digital written notes on research they are conducting. These take a form of excerpts (sometimes even multiple paragraphs), annotations, quotes, sometimes stored images, or embedded images via links to 3rd party sources (EU, as well as US and other sources). Note: let's assume that all excerpts are marked as quotes and include link/citation to the original source
  2. some of these 3rd party sources are public domain, some are creative commons licensed, some are clearly copyrighted and some have unstated terms (typically no terms and conditions included in the blog)
  3. I understand that for strictly personal purposes and in private, such notes collection is excluded from copyright protection in most jurisdictions.
  4. at certain point the person decides to create a blog on which they will publish these notes.
  5. The person publishes the notes in a good faith to facilitate own and community's further research and also claims so prominently on their website, albeit in plain language, no legalese. The intent is to eventually also publish analyses and syntheses in a form of blog posts, which however rely on the recorded notes and the linked sources. We could call this a "public second-brain webblog".
  6. there is no profit seeking, no advertisement, just plain publication of originally private notes for the purpose of sharing it with friends and seeking either discussion on topics of those excerpts and notes, or seeking commentary on own syntheses of the included notes.
  7. a 3rd party whose copyright was violated gets upset and decides to act.

Diagnosis

Despite that copyright laws have some (significant) gray area, it's clear that such a published collection of notes would infringe on 3rd copyright. Our note-taker person clearly has a problem.

This question is somewhat similar to this one.

Questions

  1. what are the relevant practices and processes? I.e., is a take-down notice (EU Copyright Directive/DMCA) an obligatory step by the violated party? Or could they automatically proceed to more aggressive legal step?
  2. what are the relevant worst-case consequences of legal proceedings by the 3rd party in EU jurisdictions, assuming that the person which committed copyright infringement is both responsive to take-down notices and complies with all other requests, potentially including website shutdown?
  3. except for deciding not to publish the website in the first place, what could be the mitigation measures the person should perform to minimise impact of their publishing the notes content?

I would be interested to hear also about specific cases of this happening in EU jurisdictions, ideally with links to descriptions of their outcomes/decisions.

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  • Any items which are in the public domain may be quoted or reproduced freely. (Note that what is in the public domain may vary from one country to another, although many things are in the public domain pretty much everywhere, such as works published 200 years ago or more.)
  • Any works released under a CC license, or another permissive license, may be quoted or reproduced freely as long as the license is complied with. This will mean providing proper attribution, and may mean placing the entire document or work in which they are reused under the same license (in the case of a CC-BY-SA license).
  • It will be copyright infringement to reprodue any other works than those listed above except where:
    • An exception to copyright applies, or
    • The copyright holder has granted permission for this use.

Different countries have different exceptions to copyright. Most have an exception for news reporting. Many have exceptions for quotes in connection with commentary and criticism. Many have exceptions for educational use in certain circumstances, although not in all cases. Whether an exception applies depends on the particular country, and often on the specific facts of the case.

The uses described in the question seem as if they might fit one of these exceptions, but one cannot be sure without knowing the specific details and the particular country involved.

Strictly speaking, the DMCA takedown procedure is part of US law, and applies only when an online service is subject to US law. However, a number of web sites have adopted it as a procedure that they will follow, even in cases that do not come under US law. Moreover, a number of countries have their own takedown procedures, which are more or less similar to the US procedure.

Under US law, no copyright owner is ever required to use the DMCA takedown procedure. It is merely an option to remove an alleged infringement from the web quickly without the delay and expense of a full trial. To the best of my understanding the same is true for all other countries that have similar procedures. A copyright owner can always skip a takedown procedure and go straight to a copyright infringement suit, but it is often desirable to use a takedown procedure.

As to a worst case scenario, if a copyright holder files suit and wins, damages can be granted for the infringement. In a US suit, these can include the infringer's profits from the infringement (if any), plus the owner's losses from the infringement (if any), plus the costs and legal fees for bringing suit. Or the plaintiff may instead accept such statutory damages as the court finds to be just, which can be as high as $150,000 for wilful infringement, and as low as $200 for innocent infringement. The details of damage rules will vary by country.

Note that the copyright owner can file suit in any country where an infringement occurs, and may later be able to have judgement enforced in the defendant's home country.

As for avoiding liability, the main technique would be to review each use of protected content, and be sure that there is a license or proper permission, or that the use falls clearly within one of the exceptions to copyright in the relevant countries. Providing proper attribution and clearly marking content as quotes helps in making it clear that infringement was not wilful. Using no more of the source than is needed for the relevant purpose helps one stay within the appropriate exceptions, and also helps avoid the quote serving as a replacement for the original, which might well damage the copyright owner economically.

Note that it can be quite expensive to file and try a copyright infringement suit, and most owners will be reluctant to do so unless they are reasonably confident of both winning and collecting substantial damages. Suits over petty infringements where only nominal damages are likely are rarely made. But that is entirely the owner's choice -- no law prevents filing such petty suits.

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  • Thank you very much for a very thorough and insightful response. Are you perhaps aware of any relevant legal precedence/cases? And if so, could you please amend your answer to include them? Of special interest would be cases involving US-based copyright holder vs. non-US-based party.
    – walkmanyi
    Aug 3 at 7:59

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