Article Summary

(full detailed version follows the summary)

What are copyrights, more importantly, what are your copyrights.

Brief history of two online Mudi pedigree databases: MAB (Hungary) and TBA (Austria).

Copyright laws in the EU, UK and USA provide very similar copyright protection for intellectual property that you have created which includes photos, videos, books, publications, documents, artwork, graphics, etc.

There is a specific (sui generis) right granted under the Database Directive which prohibits copying of data from one database to another under EU database copyright laws, this concerns private and public databases, kennel club databases, both online Mudi pedigree databases, the original private database shared with the TBA database creator, and many other private and public data sources are also likely to come under the protection of the database copyright law.

Copyright ownership can be difficult to identify, but that does not give anyone the authority to place unidentified owner materials anywhere that is accessible by others, such as on websites, or in a printed publication. You must contact the owner of the material you want to use and ask for their permission to use it, if permission is not granted, you cannot use the material.

Visibly writing the source the photo was copied from, and/or the name of the photographer or document owner as the copyright holder on a website or publication, does not supersede acquiring permission of the owner.

If you have requested permission but there is no response, you cannot use the material. The copyright owner has no obligation to respond to requests. No response equals no permission.

If the copyright owner asks for their material to be removed, the owner/admin of the website or publication must remove it.

The section of USA copyright law called “fair use” allows for usage of copyrighted material without the need to acquire permission for a few limited purposes which include news coverage, review/critique/opinion pieces, parody/satire, or ownership search. None of these “fair use” purposes apply to the TBA database, specifics are covered in the full text of the article.

There are also four “fair use” determining factors for copyright permission exclusion. These four factors are covered in the full text of the post, with regard to TBA relevance, these four factors do not support copyright permission exclusion under “fair use”.

The principles of fair use apply equally to every type of publication, whether printed or an internet site.

The “educational purpose” use exclusion is far more limited than most people think it is.

People that copy others’ materials for use on websites, confuse and mislead owners of photos, and other materials, with this excuse claiming “they have the right to use them under the fair use for educational purposes” exclusion.

The TBA is a ‘for profit business’ that accepts payment through service upgrades and sponsorship levels and their stated purpose of business is as a “service provider”.

The TBA’s taxable revenue generation and stated purpose being other than educational, automatically excludes the TBA website from the “educational purposes” copyright exclusion.

The educational fair use guidelines apply to materials used in educational institutions and for educational purposes. Other nonprofit institutions can also be considered educational institutions under most educational fair use guidelines, when they engage in non-profit instruction, research, or scholarly activities for educational purposes. None of these apply to the TBA. Educational purposes are covered in the full text of the article.

The TBA does not qualify under the educational use or purposes copyright exclusions as the website and business is not an educational institution or other non-profit institution, that engages in non-profit activities for educational purposes – TBA is a profit based service provider business. This means the TBA and its data contributors have no right to place your photos, documents or data, by claiming this exclusion, to their website without your written permission. You are well within your rights to demand they take your materials off their website and any other location you do not want your materials used.

Other options to take back control of your copyrighted materials are provided in the full article below.

Accountability is an important part of fair use. The TBA supports anonymity of its data entry participants by allowing them to operate without culpability, this makes information entered extremely unreliable, and without trustworthiness there is no value for this website or fair use for anyone. TBA refuses to be held accountable for what is entered. They openly claim no regard for correctness of information either.

Anyone that copies others’ materials to any public location without permission now has a choice to make: continue to infringe copyright laws, OR do the right thing that acknowledges true fair use for all. Just because you can do something does not mean you are allowed to. Your choice will reflect your morals and ethics and will be seen by others.

References and links are provided at the end of the post.

Copyright Infringement and the Mudi

(Full Version)

In today’s world it is very important to know your rights, and for those involved in the Mudi breed realm it is no less important as your rights are just as valid in all Mudi breed connected issues, as they are in the real world.

Copyright refers to the legal right of the owner of intellectual property (which includes photos, videos, printed publications, artwork, graphics, and many other materials). This means that the original creators of products, and anyone given direct authorization, are the only ones with the exclusive right to reproduce the created material. Very simply, when a person creates a product, they own the rights to it, this is copyright.

Copyright most often becomes an issue when your owned materials are placed on websites, or in printed publications, without your authorization. Even if you take a photo of a dog that you do not own, you hold the rights of usage/copyright for that photo, even if your name, logo, or watermark was not affixed, or was removed from the photo.

The existence of two online Mudi breed databases, as well as numerous other websites and publications, has made copyright ownership an even more important and controversial issue that you need to be aware of, IF the usage of your materials by others is important to you.

This article concerns only some of the copyright issues seen in the Mudi breed, it does not take into consideration any factors surrounding any other breed, or dogs in general. Other breeds have their own caretakers to deal with their issues, my concerns are with matters that directly involve the Mudi.

While I am not an attorney, basic copyright laws are not so complicated that an average person cannot understand them by making a detailed information and knowledge search of qualified legal sites. While I may not have hit every legal point squarely on the head (courtrooms would not be filled with battling lawyers claiming their client is right, if the law was not open to arguable elements from more than one side), I did my best to present the current copyright laws accurately. Everyone is of course free to do their own research, or consult their own legal counsel, to verify whether the information I present in this article is indeed accurate, or how it might apply to their needs or situation.

Mudi Pedigree Database Website History Basics

The Hungarian pedigree database, Mudi Adatbazis (MAB), is about 14 years past its’ start in 2010 although there is a new format and link address, due to hacking of the original database late last year. This database was created by a Hungarian and is mostly used and updated by Hungarians. The MAB is no longer accessible without registration approval which gives each person a unique ID with log-in requirement every time they want to use the site, it is however free to become a registered user, this access change occurred at the end of 2023. This means the database is only available to a limited amount of individuals, not every person on the planet that has internet.

The other online pedigree database, The Breed Archive (TBA), is operated by a business located in Austria, and just over a year old (originating in April 2023). The TBA did not create the database of individual Mudis itself, this website database was initiated by someone living in Northern Ireland and is based on a private database that was shared with this creator with the intention that the shared database would not be made public. The TBA database is mostly used and updated by those living outside of Hungary, with most being USA and UK residents. The TBA database is fully open access, there is no need to register, anyone anywhere can see the contents.

While each database has its data entry participants, supporters, and users, there are a few people that consult both.

Each database has its benefits, drawbacks, flaws and errors, however those issues are not the purpose of this post, nonetheless, “caveat emptor” is still critical when consulting any database.

Rights of Place

Even though the two Mudi pedigree databases are only available on the internet, the owners responsible for them are located in Austria and Hungary – both are EU countries. The people that support, use and contribute to these databases are living in many countries around the world, however the vast majority of the participants are in the EU, UK and USA.

Copyright laws exist in the EU, UK and USA and almost every other country around the world. For copyright infringement consideration between these nations, the use of the copied material must have occurred in a nation that has domestic copyright laws, or adheres to a bilateral treaty or established international convention, such as the Berne Convention and/or WIPO Copyright Treaty. The EU, UK and USA have their own domestic copyright laws and have also signed both of these agreements, meaning that the same basic copyright principles and laws exist in each country and each countries’ residents are subject to them. There can be expanded, amended or additional sections of copyright law that differ in one or the other country, but the same basic rules and regulations apply to all countries that signed the agreements.

GDPR also exists in the EU and can seriously affect the data types allowed to be collected and placed onto any public site. But this is a more complicated topic for another time.

There is however, one more very important bit of information relevant to this topic, database copyrights. In the USA copyright protection for databases is provided under the concept of a compilation copyright, the protection for USA based databases is rather limited. However, in the EU, a database can be protected in two ways. The first right is similar to the USA compilation copyright. The second provides for a sui generis (an independent legal classification) right that prohibits the extraction or reutilization of any database in which there has been a substantial investment made in obtaining, verification, or presentation of the data contents, meaning, you cannot copy data from one database to another under EU database copyright laws. This sui generis right granted under the Database Directive applies only to databases created by companies based in countries that are members of the European Union, which means EU companies have greater protection for their databases than non-EU companies. Austria and Hungary are EU member countries.

This means anyone harvesting data from a private or public database and placing it to another online public database is quite likely infringing database copyright law, especially if the database is in the EU. This concerns any private or online public database, including kennel clubs, both of the online Mudi pedigree databases, the original private database shared with the TBA database creator, and many other private and public data sources are also likely to come under the protection of the database copyright law.

What’s Mine is Mine

Copyright ownership, for the purpose of this article, mainly pertains to photos, videos, documents, publications, books, artwork, graphics and data. Even though it can be difficult to ascertain where individual data and other materials were procured, or find the rightful owner, it’s not always impossible. There are also specific laws that cover orphaned materials as well.

Although the MAB does have many photos of Mudis placed there over more than a decade, it is no longer possible to know which ones were allowed to be included on the site with permission of the owner, as the person who placed many of them passed away unexpectedly in December 2022 and her records are not able to be accessed. Therefore, if there are photos on the MAB that the owner no longer wishes to have on that database, they have the right to ask for them to be removed since permission is no longer verifiable. This article, however, is mainly concerned with the placement of photos and data to the very recently created TBA database, for reasons that will soon become clear.

While copyright ownership can be difficult to identify, especially for very old photos and documents, that does not give anyone the absolute, unquestioned authority to place unidentified owner materials anywhere that is accessible by others, such as on websites, or in a printed publication. If an owner, their descendants, or their legal representatives eventually come forward and ask for the photo or document to be removed, the website or publication must obey that request. Of course, a royalty fee for use of the material can also be agreed upon and documented between the parties involved alternatively.

Also, visibly writing the source the photo was copied from, and/or the name of the photographer or document owner as the copyright holder on the website or publication, does not supersede acquiring permission of the owner, this practice does not bypass permission procurement. And once again, if the copyright owner writes and asks for the item to be removed, the owner/admin of the website or publication must remove it. It is always correct procedure to first contact the owner of the item in question and ask for their permission to use it, if permission is not granted, then you cannot override their denial for usage. Writing the name of the copyright holder means you know who you should have contacted for permission and makes you even more accountable to pursue and acquire written consent. And listing the source where the photo was taken from is proof positive it was copied from that source, but it does not make taking the photo from that source allowable and it does not replace permission to use the photo.

If you have requested usage permission from the copyright owner, but they have not responded, you cannot use the item in question by assuming the copyright owner would not object, or that you made an effort to ask for permission and that is the extent of your responsibility. The copyright owner has no obligation to respond to requests for use of their material. No response equals no permission.

Copyright duration, as a general guideline, for most materials created after January 1, 1978, copyright protection lasts for the lifetime of the author plus an additional 70 years. This is however a very basic guideline, further investigation must always be done before considering any material as public domain or orphaned.

Every photographer, material and data owner has the right to say what happens with their material – where it’s used, when it’s used, and how it’s used, and thankfully, there are laws that protect your right to do just that.

Every Law Has Its Loophole

Since the USA has the most detailed copyright law information available, and US residents are among the most active on the TBA database, and they frequently cite US copyright law, it will be used as the basic copyright law example that should exist in a similar form throughout the EU and UK as well.

There is a section of USA copyright law called “fair use”. This “fair use” section allows for usage of copyrighted material without the need to acquire permission for a few limited purposes, these purposes include news coverage, review/critique/opinion pieces, parody/satire (for example: Mad Magazine, “Weird Al” Yankovic, SNL, Irigy Hónaljmirigy, etc.), or when an author or owner of a specific material is being searched for. It’s easy to see that none of these “fair use” purposes apply to the TBA database as it is not covering news, not giving content reviews, and while the data errors are sometimes comical, lampooning for laughs is not one of the stated purposes of the database, and lastly the TBA database is not searching for owners of copied materials, nor is this a listed purpose of their website, nor is it an appropriate place to conduct such a search.

There are also four “fair use” determining factors for copyright permission exclusion, that must be considered when deciding whether a use of copyrighted material earns the right of ‘no permission required’:

1) The purpose and character of the use, including whether such use is of a commercial nature, or is for non-profit educational purposes.

(This first factor mostly considers whether the use is commercial or non-commercial and whether the use is transformative. Commercial use is less likely to be considered fair use, non-commercial use is more likely to be considered fair use. Transformative uses add something new, provide an additional purpose or different appeal, and it is not a substitute for the original use of the work. Transformative use is more likely to be considered fair use, not transformative use is less likely to be considered fair use.)

TBA relevance: The TBA is not using the copied materials for non-profit purposes as the TBA is a commercial, service providing business. The TBA is using the copied materials in their exact form in the majority of cases, but especially in the case of copied photos and individual Mudi data (such as name, color, sex, date of birth, parents, littermates, etc.), which would be useless if transformed, which goes against fair use rules. The photos and data are duplicated for the same purpose they had wherever they were taken from, and the purpose of these copied materials is the same in their former location, as it is on the TBA.

2) The nature of the copyrighted work.

(This second factor looks at the nature of the underlying work, whether it is more creative or more factual. Use of more creative or imaginative underlying work is less likely to support fair use, while factual work is more likely to support fair use. This factor also looks at the publication status of the copyrighted work, if it is unpublished the use is less likely to be considered fair use.)

TBA relevance: The copyrighted photos and data in both online Mudi databases are meant to be factual (although there can be serious fact affecting errors in both databases), however, the majority of the data and photos were first published on the MAB website, as well as a significant portion of the TBA data came from a private database share that was not authorized to be made public, therefore the use of the data/photos by TBA on their identical purpose public website is unlikely to be considered as fair use.

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

(This third factor takes into account the portion of the copyrighted work that was used compared to the copyrighted work as a whole. When the amount used is very small in comparison to the copyrighted work, this favors fair use, however if the amount used is not insignificant, this will favor the copyright owner. This factor also takes into consideration if the portion of the material used was the ‘heart’ of the work, if the portion copied is deemed to be a crucial part of the original material, it will likely go against fair use consideration, even if the portion was very small.)

TBA relevance: The database deployed on the TBA website was first privately made from data that was mainly copied from the MAB database. The TBA Mudi database was launched with full public access in April 2023 with approximately 7500 Mudis. It is likely that 75% of the current TBA data came from the MAB (the TBA database launched with approximately 7500 Mudis and now has 10,000 = 75%, however harvesting of data from the MAB has not stopped, meaning more than 75% is possible). The essential individual Mudi data copied over to the TBA (by the original private database builders based in the UK and Northern Ireland) is the crucial element, or ‘heart’ of the MAB, and the majority of the TBA data was harvested from the MAB, which makes it unlikely that the copied data and photos would count as fair use.

4) The effect of the use upon the potential market for or value of the copyrighted work.

(The fourth factor considers whether the copied material may harm the current value, but also whether use may cause harm to potential markets that could be exploited by the copyright owner if the use were to become widespread. If the use harms the copyright owner’s current or potential market, it will likely go against fair use. Along with the first factor, this factor is one of the most important in the fair use analysis.)

TBA relevance: There is a consideration of harm to private individuals, as well as harm to the MAB original online database. Creating a duplicate version of the MAB online database by the TBA has created a serious conflict between users, supporters and information flow. The MAB is free of charge to all users and always has been, while the TBA basic database use is free, there are also fee based upgrades, which mostly make the site easier to use (which is not vital), but the paid service upgrade automatically notifies owners when someone has entered data to the records of Mudis they own or have bred, which is vitally important to be informed of (the TBA allows anyone to make any data entry to any Mudi in the database, whereas the MAB only allows owners and breeders to enter data to their own Mudis). As there is now a second online database option, based on the data and photos harvested from the first (MAB), the opportunity for the original MAB database to change to a paid service is unlikely to be successful, which poses a serious threat to its future existence and ability to upgrade services offered.

An immediate and greater harm via factor four is to individual photo and data owners, but especially to photo owners. If the TBA is allowed to take and use any photo from any location they want without permission, this will limit photo owners from using their photos for their own projects and purposes, some of which may provide monetary benefit if the owner had sole access to them, rather than the fully public access of the TBA. For example, if someone makes custom pedigrees using photos they have personally taken with their own camera or asked permission to use for this purpose, if the needed photos for the project are already taken to the TBA without permission or royalty fee, then the ability for that individual to use them for financial gain is lessened or lost. Also, the TBA is using photos and data of others for their own financial gain, without their permission, which goes against existing copyright law, rather than at least paying the photo owners a royalty fee for their use.

The principles of fair use apply equally to every type of publication, whether it is a printed educational document, or a website. There are no concrete rules for determining how these four factors will be applied in a dispute, as every copyright infringement case is unique and must be decided on its own circumstances. While one factor or another of the four may carry more weight in a fair use determination, all four factors must still be considered, and one factor alone cannot determine whether the use qualifies for permission exclusion. However, the first and fourth factors are often the most influential in decision making, as well as the answers to the following key questions:

1) Did the unlicensed/unauthorized use “transform” the copyrighted material by using it for a different purpose than that of the original, rather than just repeating the work for the same intent and value as the original?

2) Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

If the answers to both questions is ‘yes’, a court is more likely to agree with fair use of the disputed material. If we ask these questions with regard to the TBA website use of unauthorized materials, both questions are answered with ‘no’, as explained in the 4 factors above.

Square Pegs in Round Loopholes

There is one more copyright ‘no permission needed’ loophole, which the people that upload and enter the copied materials to the TBA claim gives them the authority to use any copied materials without permission, this is the “educational purpose” use exclusion.

The burden of proof for the “educational purpose” use exclusion is the responsibility of the user of the copied materials to demonstrate that the website/publication they place copied materials to is exclusively educational and does not profit from usage of copied materials. It is also important to know that the use of “educational purpose” is far more limited than most people that claim this excuse, think it is. Also, as most people don’t know about the rules of this loophole, they will not question it further when they are told by the material copiers they have the ‘right’ to use your stuff. Some people copying materials for use on a site, confuse and mislead owners of photos, and other materials, with this loophole so that they can continue to use others’ copied materials to ‘beef up’ a site, they could not provide information for by themselves. I have personally experienced this deceiving attitude when I asked to have photos that belonged to me taken off the TBA database, they don’t apologize and take them off without question as they should. Instead, they argue with you claiming “they have the right to use them under the fair use for educational purposes” exclusion. It is only after demanding they remove my photos several times during the request, that they keep them off the website. Allowing deliberate disrespect for the rights of others, as well as allowing data entry users to use a false claim of rights exclusion, is not how a reputable business operates.

Because the TBA is a ‘for profit business’ that accepts payment through ‘service upgrades’ and three sponsorship levels, and their stated purpose of business is as a “service provider”, more specifically: “TBA provides its users with a platform for the recall of information about available animal breeds”. These fee collecting options and their stated purpose being other than educational, automatically excludes the TBA website from the “educational purposes” loophole, as it is not a purely educational website, and they also generate taxable revenue. However, I think it’s still important to cover all the “fair use” for “educational purposes” rules, as the TBA does not qualify under those exclusions either.

What Is “Educational Use”

The educational fair use guidelines apply to materials used in educational institutions and for educational purposes. Educational institutions include elementary and high schools, colleges, and universities.

Libraries, museums, hospitals, and other nonprofit institutions also are considered educational institutions under most educational fair use guidelines, when they engage in non-profit instruction, research, or scholarly activities for educational purposes.

What are “Educational purposes”

- Non-commercial instruction or curriculum-based teaching by educators to students at nonprofit educational institutions

- Planned non-commercial study, or investigation, directed towards contribution to a field of knowledge

- Presentation of research results at non-commercial peer conferences, workshops, or seminars

- School projects, scholarly studies and scholastic research are also likely to be included

The TBA does not qualify under “educational use” or “educational purposes” copyright exclusions as the website and business is not an educational institution or other non-profit institution, that engages in non-profit activities for educational purposes – TBA is a profit based service provider business. This means the TBA and its data contributors have no right to place your photos, documents or data, by claiming this exclusion, to their website without your written permission. You are well within your rights to demand they take your materials off their website.

Other Options to Take Back Control of Your Copyrighted Materials

If a website refuses to take down your copyrighted material, you can send them a DMCA take down order.

Another option is to contact Google and report the copyright infringement through their portal. They will remove the website from their search engines if they find your materials were subject to copyright infringement.

You can also confront copyright violators through social media. You can make a post about the copyright infringement on your social media accounts, with a tag to their accounts to make sure they see it.

Instructions for taking these steps listed above and others, are provided in the References and Links section at the end of this article.

And in case you were wondering, you do not have to officially register any of your photos, documents or other owned materials with any official registry to claim copyright infringement thanks to WIPO and the Berne Convention.

Fair Use for All

Accountability is an important part of fair use. The TBA supports anonymity of its data entry participants by letting anyone make their own anonymous ID’s which are devoid of any identifying information which is then credited to the data they enter. This makes any information entered to this database extremely unreliable, as any of these empty ID people can enter data to any dog they want, mislead those that request their materials be removed, and no one will be able to question them personally as they are unknown entities – how is this allowable on a public website that requires trustworthiness to be of any value? It’s no wonder so many breeders and owners do not want their Mudis listed on the TBA site, and the TBA continues to do this without permission.

No one should tolerate or support a profit seeking business that provides a platform which allows duplication of others work and materials, for its monetary gain and operates in direct infringement of many laws. The TBA platform serves the same purpose and nature as the long-ago existing MAB website, the TBA is just repackaging the data and photos obtained from that website for their own profit, copyright law clearly states this is against fair use of copyrighted materials: “where the amount used is not insignificant, this factor will favor the copyright owner. This factor also considers the qualitative amount of the copyrighted work used. If the portion used was the “heart” of the work, this factor will likely weigh against a finding of fair use even if that portion was otherwise a very small amount.” This is exactly what has occurred by the creation of the Mudi database on TBA specifically (this may not apply to other breeds and their data on the TBA).

Anyone that enters copied data, photos or other materials, without express written permission from the owner of said materials to the TBA database, is committing copyright infringement and TBA refuses to be held accountable for what is entered: “The information available through the platform is provided by the users. TBA merely plays a purely technical role as disseminator/host, with no influence over the content delivered by users, and neither monitors nor checks information for correctness. Each user is responsible for the content he or she provides to the platform”. They openly claim no regard for correctness of information on their publicly available platform, this is definitely not the standpoint of an educator or historian, which should remove any lingering doubt you might have that the purpose of the TBA is education or research.

Just because photos and other materials are placed to the internet, or into a printed publication, does not mean they are free to use by anyone anywhere for any purpose – they are not, according to copyright laws. It is of course not easy to stop copying for private use, but the second you use what is not yours in a visible space, if the owner comes to you and wants you to remove it or pay for its use, you must comply or face possible legal action which may end in a fine or payment for the time the material was in use.

Maybe you were not aware of these laws, or the disposition of the TBA, or maybe you were. Either way, you now have a choice to make: will you continue to infringe copyright laws for this business which clearly cares nothing about you or the Mudi breed, or the accuracy of the information it provides, or will you do the right thing that acknowledges true fair use for all? Your choice will be a reflection of your morals and ethics, and there are a lot more people with open eyes now that will see the path you choose.