Archives For Incident

Turning the corner

December 9, 2016 — Leave a comment

British Cycling launched the campaign #TurningTheCorner. A campaign to simplify the rules around turning at junctions, to make it safe for cyclists and pedestrians and to reduce casualties.

I can’t fault the idea of making the roads safer. I’m 100% behind that. However I am concerned with how this is actually going to be implemented. If we look at countries which already have such rules in place, they usually A. have better infrastructure. B. the rules have been established for a while C. More people cycle, more people know people who cycle and generally cycling is more accepted, as such people are more aware.

I can just see now a stream of cyclists going northbound on CS7 past Clapham Common on approach to Rookery Road and a vehicle waiting to turn left, they will be there for one hell of a time. Approach speeds can easily be greater than 20mph and I would struggle to trust a driver to not turn across the path of the cyclists.

And I have many more examples of exactly the same at this junction.

We have a real life example of how a change to the road can fix this. A few years ago I witnessed a truck overtaking a cyclist at Oval and turning left across her, it very nearly resulted in her going under the wheels of said truck. Read about that case.

The junction as it used to be, cyclists going straight had to share a lane with motorists turning left.

screen-shot-2016-12-08-at-22-37-59

The junction now is very different, cyclists are separated from motor traffic and turning cars have a different phase of light.

screen-shot-2016-12-08-at-22-37-24

 

One way the dutch do it (when space is available) is fantastic. The turning traffic is 90 degrees to the cyclists, and as such do not need to rely on their mirrors to see cyclists, they look out their side windows and windscreen. Cyclists in this situation have priority and cars can only go when it is clear for them to do so.

To summarise. Changes need to be made, and London has been making some fantastic changes recently that has resulted in an increase in people cycling. But we need to improve the areas that don’t have such facilities and the rest of the country. I know that personally I would be cautious of passing a left indicating vehicle on the left, even if the law states that they must wait for me to pass.

That is what is being reported over the following video

But it is a little more complicated than that. As someone with extensive experience in dealing with the Police, CPS and the Courts in similar cases I thought I could shed some light on this, however I saw that a user called Dan S on road.cc posted a very good summary, it is listed below.

  1. It’s a hire car.
  2. The police did what they should have done and served a s172 notice, requiring the hire company to tell them who hired it.
  3. The car had been hired out to a man but with two permitted drivers: him and a female. They were also served with s172 notices requiring them to say which had been driving.
  4. They declined to say who had been driving. This is obviously extremely reprehensible. Note that at this point the fact of its being a hire car becomes irrelevant. It is exactly the same situation as if my car hits somebody (or just goes througha red light/speed camera) and my wife and I refuse to say which of us was driving.
  5. A few people have said that the failure to find out who it was shows that the police either don’t care or are incompetent. This is simply wrong. It is conceivable (likely, in fact) that the car went outside the view of CCTV. In any event the police would not have gone to CCTV until it became apparent that the car was a hire and the hirer wasn’t complying. Doing so would have been a complete waste of resources as most people do comply. By the time they got that far it is likely that any CCTV other than city council would have been wiped – most provate companies keep their CCTV for short periods only, to save space. You can only check out an alibi if they give one – they may not have done so.
  6. The same goes for mobile phone positioning, with the added complication that it is very difficult and very expensive to do a precise triangulation of mobile phone position. The bit that can be done relatively easily is call data. That just shows you which cells were used and this is not sufficient to say exactly where you were (it can be a range of several kilometers). It also only works if you are actually using your phone at the time. Anything beyond that rough position requires very time-consuming and expensive work. By which I mean that police resources are such that it is very rare to get it in cases like organised burglary and drug dealing gangs. This does not mean that the police don’t care about this case or about cycling generally. It means that they do not have infinite resources. Add complications like showing who had which phone at the time (basically impossible in some cases) and the decision not to go down that route is entirely right.
  7. Both were summonsed for failing to stop, failing to report and failing to respond to their s172 notices. The CPS (rightly) took the view that there was no prospect of conviction on the failing to stop and failing to report for exactly the same reason that there is no prospect of a conviction for dangerous driving: it is impossible to identify the driver. This, by the way, is not the CPS being incompetent of uncaring or a bunch of car drivers who cyclists. It’s the CPS applying the law.
  8. The male (presumably it was he who hired the car) was convicted of failing to answer the s172 notice. The female doesn’t appear to have been convicted, which makes sense – she would only be lawfully required to reply if she was the driver. Since we would only have the male’s word for that, she wouldn’t be convicted (the Prosecution not being able to rely on a Defendant’s word in their case).
  9. The male was fined £150. This is shockingly low. The maximum is £1000. This low fine is not the fault of the police or the CPS. It is a decision taken my magistrates. They have sentencing guidelines that they have to pay heed to but are free to excedd in appropriate case. Personally I would have thought that this justified a higher fine but I (like everybody else here) don’t know the details of what led to the decision, so cannot say for certain.
  10. The male received 6 penalty points. This is the maximum penalty in terms of driving punishment. The fact that this is the maximum is not the fault of the police, CPS or Magistrates. It is the fault of the Parliament of 1988 that passed the Road Traffic Act and of every Parliament since that has not increased it.
  11. Personally I feel that the penalty for willfully failing to provide details should be the same as the penalty for whatever offence the unidentified driver committed. It isn’t. If those who are talking about writing to MPs want to put something useful in their letters, leave aside calls for expensive infrastructure and education that will probably be ignored. Write and suggest an amendment to make wilfully failing to supply driver details punishable with the same penalty as the offence that the driver committed. That’s the actual lesson from this case.

This is not a case, as far as the reports show, where the police have been lazy, incompetent or uncaring about cyclists. Nor have the CPS. The only reprehensible behaviour has been by the driver and possibly by the other eligible driver (I say possibly because it may be that each said it was the other, in which case the non-driver has done nothing wrong). And possibly the court sentenced too low but really would a £1000 fine have reduced the justifiable sense of injustice here?

It is also a case that highlights a problem with the current legislation. That is not something that can be fixed by the police, the CPS or the courts. It needs a Bill in Parliament.

I shall add to point 9 that these fines are usually based on the income of the individual. I say this based on being involved in cases of the same nature where people have declined to say who was driving.

A few months back TrafficDroid posted a short video of him being knocked off by a Taxi in London. Recently an update has been posted with the results.

So the basics of this is the cyclist was travelling in a straight line, thought the overtake was too close so sounded his horn. Driver stopped whilst moving to the left in an attempt to block the cyclist, cyclist carries on, driver passes again this time much closer, moving left and knocks the cyclist over and in between parked cars.

The results of this are 6 points on his license and a £700 fine + court costs.

Some might say, good result. But if I’m honest, I’m disappointed in our system. This was clearly a purposeful act and yet he only gets done for driving without due care, 6 points and a £700 fine.
Because Taxi drivers are self-employed, it is hard to say how much one earns. It’s often thrown around that they are tax dodgers. I don’t think the £700 fine is that much.

But lets put it this way. A professional driver purposefully used his vehicle to knock a vulnerable road user over and into some parked vehicles. If anyone in any other occupation did something comparable, they would be fired from their job and struggle to work in the same field again. Yet when it comes to professional drivers they are let off, back into the street to do the same to the next cyclist that doesn’t agree with him.

Why does our legal system allow this to happen? This sort of driving is not by mistake and it’s clear from his response of “what are you doing?” And not “oh my god are you ok? I’m so sorry” that he did this on purpose.

I won’t even mention the false witness statements that other taxi drivers who didn’t witness it are willing to put forward to help their buddy.

So a few months back we had a really bad few weeks in UK, several cyclists died on our roads in the space of only a few days. The London Cycling Campaign invited cyclists from across London to attend a vigil at the sites of one of the deaths, a location which has been involved in several deaths previously, Bow Roundabout. I attended the vigil and made a short video documenting it and the turn out.

As I always do, I put a video up online. The Daily Mail decided to add it to one of their articles, not by using youtube embed but instead adding it onto their system and putting adverts in front of it. The following is my correspondents with the Daily Mail about them breaching my copyright.

dailymail1

Video request – #space4cycling Bow Roundabout 13.11.13

Dear CycleGaz,

Do you own the video:

http://www.youtube.com/watch?v=iElt_4OzYKo

If so, I’d like to request permission to download it and play a minute or so of it on our website (www.mailonline.co.uk) to go along with the story we’re running today.

We will of course credit your YouTube channel.

Regards,

Daily Mail Employee 1

I got the above message on youtube the day after I put the video up. However being busy all day and in the evening, I didn’t see it till the next day. It was sent at 8:29am

Dear Daily Mail Employee 1,

Further to your approach on the 14th November 2013 at 08:29, please provide me with contact details for the appropriate person for me to deal with regarding the unlicensed use of my video on the daily mail site.

http://www.dailymail.co.uk/news/article-2506215/Boris-Johnson-says-risk-taking-cyclists-blame-accidents-wake-bikers-killed-days-Londons-roads.html

Regards,
Gaz

I sent the above e-mail on the 15th of December, a month after it went onto their website. Why? I was looking at various avenues on how to approach this, and the most cost-effective was to go down the route of pursuing it my self. Lawyers fees would have been over the value I was able to get, the lawyers/solicitors I spoke too were unable to value the claim.

I got a response later that day, Daily Mail Employee 1 was off ill, but had forwarded my e-mail onto ‘the desk’.

Hey Gaz

Daily Mail Employee 1 has forwarded this on to me as he is unwell

As far as I can see the request below was put into your YouTube channel (the youtube message above)

Due to the fast turnaround of content on the site we needed to go ahead with the news story

We are more than happy to pay industry-rate for content which in this case would be £50 for use

Let me know

Best
Daily Mail Employee 2

£50? That may be your fee, is it really the industry rate for content? after doing some reading about other people having their copyright breached by the Daily Mail (mostly photographers), they offer £50 for everyone. I joked with friends and colleagues that a video is essentially a series of photos, they used +60 seconds of my footage, so that is a little over £90,000.

Dear Daily Mail Employee 2,

Without Prejudice Save as to Costs.

Thanks for you reply of 16.12.13 at 11:40, I was extremely disappointed to see my video used in the way you have used it. This was a particularly flagrant breach of my copyright because you didn’t wait for my response, you downloaded my video and uploaded it to your own system instead of using YouTubes embed feature and you added your own adverts.

You ought to have known that the video would be protected by copyright, and use of my video in this way by you in the course of your business would be a criminal offence under S.107(2A) of the Copyright Act 1988, punishable by up to two years in prison and/or a fine.

If I have to take this matter further, I may be entitled to claim damages not only for the direct losses caused by your infringement, such as my loss of license fee, but also for one of more of the following:
– I am entitled by law to additional damages where the breach is flagrant or where you have gained a benefit from using the video.
– I may elect to require an account of profits from your use of the video, and may require you to carry out disclose of the full amount of profits derived from use of my video. This may include my claiming a share in the total profits from the adverts.
– I may be entitled to additional damages for ‘moral prejudice’ under S.3(2)(a)(ii), The intellectual Property Regulations 2006.
– I may be entitled to claim from you any additional losses caused to me which results from your breach.
– If I have to take this claim further, the costs of lawyers’ fees, court fees and other expenses will also be added to the cost of the claim.

The foregoing list is not exhaustive, and I reserve my right to claim for additional heads of damage.

In the interests of resolving this matter quickly for both of us I am, at this stage, willing to make a without prejudice offer to waive my rights to damages from you with respect to your breach for a payment of £5,000, provided that you accept this offer in writing within the next 7 days and provided that such sum is received on my account within the next 14 days.

This offer applies with respect to your breach of copyright and the usage of my video on your website, and does not in any way imply waiver of consent regarding any additional usage or use of any other video or any breach by any other person.

This offer applies to the settlement of your breach of copyright for this video and the further license on the video on your website.

Should I not receive notification of acceptance of this offer within the period described above, I shall file this matter with the small claims court. Additional costs may be incurred which I shall expect to recover from you.

Yours Sincerely,
Gaz

It’s a smart request, if I don’t say so my self. “Without prejudice save as to costs” is a term that doesn’t limit later values of the claim to the value you put on it in this contact.

Afternoon Gaz

We do take copyright extremely seriously and waited overnight for your response, however in view of it being a pertinent news story, moved ahead with the edit in the correct manner.

The request was sent on the 13th November and the video not added to the system until the 14th of November, in light of it being a news story I believe this was a reasonable effort at making contact and time period given in which a response was possible

The content was attributed so there is no breach of your moral rights

As stated, the industry license fee for such content is £50. The profits made from the use of the video are in the region of £52.20

It was an essential part of the report at the time and now we have removed the video in view of your complaint

In these circumstances we are happy to offer £150 in full and final settlement of this matter

Regards

Daily Mail Employee 2

So they have tripled the offer from their initial one, I suspect that they are willing to play the long game with this, offer as little as possible and hope those that are making the claim do not have the time, knowledge or assertiveness to push further. I was smart in my previous response, I kept some information back and they fell right into my ‘trap’.

Dear Daily Mail Employee 2

As per your initial e-mail to me, you included a copy of the message that Daily Mail Employee 1 sent to me on Youtube. The timestamp for that message was 08:29 14/11/13. You mention that you made a reasonable effort at making contact and left reasonable time for me to respond. A comment was posted on my youtube video at 09:29 14/11/13 that stated that my video was now on your article in the Daily Mail. I believe that an hour is not a reasonable amount of time to wait for a response, not getting a response does not allow for you to break copyright law. I have attached copies of both of those e-mails I got, including time stamps.

You mention that you waited overnight for a response, which I have shown to be incorrect, and that this was a pertinent news story and that you moved ahead in the correct manner. Youtube offers an embedding service that allows you to embed videos hosted on youtube into a webpage. It’s seamless, easy to do and has been around for several years. It wouldn’t breach my copyright as it would be my video that is embedded. That would have been the correct action to take without first sourcing a license. After which point we could discuss a license cost and if we came to an agreement you would have been able to add the video onto your system.
You added the video to your own video system, and played adverts before it that lasted 30 seconds and where not skippable.

My license fee for video footage is £30 per second. This falls within prices that are often seen for similar pieces of work by other videographers, footage is paid for price per second and usually falls within £20 to £60 per second. You used 67 seconds of my footage and this equates to a license fee of £2,010.

Due to the flagrant breach of my copyright, as highlighted above, I increased my license fee and added on what I thought you may have potentially made from advertising and an extra cost for keeping the license. This is in line with the Copyright Designs and Patents Act of 1988.

Due to the information you disclosed regarding the earnings from the adverts and the fact that you have removed the video. I am happy to drop my fee down to £4,000 but still matching the same terms as highlighted in my previous e-mail.

Kind Regards,
Gaz

The key there was to be factual and precise. I’m clearly able to prove that they did not allow enough time for me to respond, that there was a way to use my video without breaching my copyright. Breaking down the costs a bit and explaining the basis behind them along with price ranges often used by videographers for footage. Lowering the requested amount in this case shows that you are being reasonable, which is key if this goes to court at a later date.

Thanks for this Gaz

It was not the intention to use the video without giving you reasonable opportunity to respond however as Daily Mail employee 1 is currently undergoing surgery I can only take your account of the time frame based on the information that has been passed on to me.

In relation to the value of the content, by putting video on YouTube it can not be said to be exclusive and hence the stated fee is gross excess of what it would be worth.

We have offered an accurate account of our profits for advertising and added almost double the normal fee, amounting to £150, an offer which we believe to be reasonable and hence that offer stands.

Regards
Daily Mail Employee 2

At this point there is no need for me to debate the finer details of exclusivity and it’s value. I’ve made it clear that they are 100% in the wrong.
It’s now the Christmas break, the last e-mail from them was on the 18th of December, I left it over Christmas and new year and got back to them on the 3rd of January.

Dear Daily Mail Employee 2

Further to our recent correspondence,

You used my video without my permission. I would not have agreed to your usage for the amount that you have offered and you breached my copyright. It is therefore appropriate under the circumstances that you pay my license fee.

Attached is my invoice for the license fee. If I don’t receive payment within 14 days, I’ll issue proceedings via the small claims court.
Any extra costs involved in making the claim, including the cost of my time, will be added to the amount claimed.

Regards,
Gaz

Including an invoice is an interesting tactic, it forces into through their accounts system and flags up as an issue to people outside of the current circle. Not paying an invoice in time is subject to further costs.

Dear Gaz

Thank you for your emails and previous correspondence with Daily Mail Employee 2 that have been passed to me for attention.

We have now had the opportunity to discuss this with the video editor who was on duty on the day your footage was used and agree that your permission should have been received before the video was uploaded. Our usual editorial processes fell short on this occasion and we regret that this occurred.

With the above in mind, and considering our usual rate for videos used within a similar context on the site is £80, we are willing to offer payment of £250 in full and final settlement of this matter.   We note that this is substantially above standard rates paid for such footage, used in similar contexts.

We have also addressed this matter internally with our staff and have permanently removed the video from our website.

Please let us know if you are happy to accept this as resolution to your complaint  and I will arrange for payment as soon as possible.

Yours sincerely

Daily Mail Employee 3

It seems to be going up the chain, this is an assistant managing editor. Along with going up the chain, the offer is also increasing. However, I still don’t think this is acceptable. I do not respond to this e-mail, instead I waited 19 days and sent the following.

Dear Daily Mail Employee 3

I am disappointed to note that you have not paid my invoice in full and I note that you have confirmed your editorial processes fell short and that you agree my permission should have been received before the video was uploaded.  It is therefore appropriate that you pay my invoice in full.  Failure to do so within 7 days will result in the issuing of proceedings via the courts for the invoice plus costs as previously communicated.

Regards,

Gaz

A direct and firm e-mail, giving them time over what you initially stated is key if you do take this to court! You need to show that you have given them plenty of opportunity to pay.

Dear Gaz,

Thank you for your further email.  In full and final settlement of your complaint, we are prepared to pay you £1,000. Please note that if you do not wish to accept this offer, it would be worth our while arguing the value of the copying in court.  We will rely upon our correspondence in respect of costs.

Please let me know how you would like to proceed.

Best wishes

Daily Mail Employee 4

I’m not sure how our previous correspondence will help them in court. The problem I will have is I have nothing to show that my costs are £30 per second, I have not previously charged that. They also did not wait for my response, if I had responded with that being my price and then they breached my copyright, then I would be in a better position to argue my costs in court.
However, that does not mean that £1,000 is a bad offer. I was playing along with their game, except I was in a much better position. As I mentioned earlier, I suspected that they would be playing a game where they try to pay as little as possible and hoping that people do not have the knowledge, time and assertiveness to push along with it.

There is plenty of other people who have been in just this position and it has been exactly the same. I suspect they regularly breach copyright and just hope that people do not follow it up. But that is the key thing, we must protect our copyright!

Now I said on twitter when I was first looking into this that I would donate the money to charity, I was not in this for the money. I wanted to prove a point to the Daily Mail and I felt that no one should make a profit from this. As the video they used was about the cycling deaths we had in London towards the end of 2013 and because it was a film of the vigil that the London Cycling Campaign had for those cyclists at Bow Roundabout. I have come to the decision that the £1,000 shall be donated to them to help continue their fantastic work towards making London a great place to cycle.
Due to me working out the tax side of things I have currently not donated the money (I only received payment from the daily mail yesterday), but will do shortly.

If anyone wants any advice on how to tackle these situations, please do get in touch, I am more than willing to help others protect their copyright.

RX11AXP – Result

May 1, 2013 — 21 Comments

I’m sure many of my subscribers recall this incident and are wondering what was happening with it. Several weeks ago I was in court as a witness for it. The driver was found guilty of Careless Driving, 3 points on his license, £200 fine, £140 court costs and £15 victim surcharge.

This incident has been much more than just that result, I’ve known what has been happening behind the scenes for quite some time.

Reporting the incident

Those who use RoadSafe London will know that there was a change in how things were handled late last year, a change that many of us appreciated! This was the first incident to be dealt with under the change, and potentially the turning point. When I originally reported this incident I was left with no feedback and when I chased about it I still had no feedback. After contacting an officer who I knew had previously worked with roadsafe the report was chased up and I was put in touch with PC Walters.

From there I gave a statement and provided footage. This was different to before, others and I had previously been to RoadSafe HQ to meet with the staff and talk about the system but this was a different approach.

The Company

The company failed to respond to any form of contact and that isn’t just from my self but from many of the people who viewed the video. They were inundated with e-mails and didn’t know how to respond. This goes to show that a company vehicle with contact information on it is a massive advertising board, if you drive in a manner which people deem to be dangerous then the company will be contacted. I did not put details about how to contact the company or ask people to contact the company in my video description, people did it on their own accord.

PC Walters visited the company to get details on who was driving at the time. The company had been making improvements to its fleet, including improved driver training and putting “Look out for cyclists” stickers on the dashboard of their vehicles. VOSA visited the company and checked on everything, I don’t know anything apart from that and I believe that happened after the improved driver training and stickers.

The Court Hearing

Despite the clear video footage of what happened, the defendant originally pleaded not guilty to careless driving. It went in front of a magistrate and the defendant and witnesses were questioned. The defendant said that he was distracted by a van that sped past him and took the same turning as him, he had to slow down and sound his horn as a warning. The horn is on the same stalk as the indicator and he was unable to indicate earlier. The defendant said that he thought the cyclist was taking the same turning as he was. He mentioned his professional driving experience of over 20 years and training he was undertaking to drive bigger vehicles.

As I left the court room, the driver said “Watch yourself out there” to me and his brother gave me a sinister look. Probably not the best thing to do when a waiting room is filled with several police officers.

The Road Layout

This can be a confusing road layout for someone who has not ridden it and is one that has been raised on several occasions as a danger spot to TFL, I raised in back in 2010 when I spoke to the manager of CS7 and CS3.

Kennington Park Road

  • Cyclists following the road round to the left would stay in the bus lane.
  • Cyclists following the road straight ahead need to merge into lane 1.
  • Drivers following the road round to the left need to be in lane 1.
  • Drivers following the road straight ahead need to be in lane 1, 2 or 3.

And there is the problem. A cyclist wishing to continue straight ahead must merge into the same lane as traffic that is wishing to turn left. A strong position is required in the lane and taking it as early as possible is the best approach. However with motorists zooming past and cutting in front of you, this is daunting for many cyclists and ultimately motorists feel as though they can push past when really they shouldn’t.

Conclusion

The work that was undertaken by the Police was fantastic and something I had not seen or heard of before with a non-collision cycling incident caught on camera. The punishment I believe was fair given previous punishments we have seen with video footage but perhaps there is still an underlying exceptional hardship taken on drivers. I’m sure many will say that they believe that the driver should have lost his license.

The work that the company did to improve their drivers was something I was not expecting and I think they deserve credit for that!