Developing A Copyright Risk Management Plan

If you live in Canada, you may apply for an unlocatable copyright owner license from the Copyright Board of Canada. Licenses may be granted for a five-year period for the use of published copyright works in Canada. However, before a license is granted, you must prove to the Copyright Board that you’ve taken every reasonable effort to locate the copyright holder.

Publishers, archives, television producers and others have obtained these licenses since they were first made available under the 1998 amendments to the Canadian Copyright Act. The Copyright Board of Canada provides more information. For a primer on unlocatable copyright owner provision in Canada, see the article Orphan Works in Canada: Unlocatable Copyright Owners.

If you live in a country without an unlocatable copyright owner provision, such as the U.S., you have two choices. First, don’t reproduce the work; instead, find another copyright work that suits your needs. Second, reproduce the work, fully aware of the risks you’re taking. What exactly are those risks?

Risks Involved in Unauthorized Use of a Work

There are several risks you may face when using a copyright-protected work you don’t have permission for, or for which you think the principle of fair use or fair dealing may apply.

• First, you may face paying a copyright fee after using the copyright-protected work. In the worst case scenario, you may be subject to a lawsuit (which would more than likely be settled out of court).
• Second, you may face public embarrassment by the fact that you used copyright-protected materials without permission. This may be reputationally damaging, especially for a publicly-funded organization or an organization that either creates, licenses or distributes copyright-protected works or other intellectual property.
• Third, you may need to stop using the non-cleared work. This may encompass actions such as removing an image from your website, or re-printing a print publication that includes the work. Of course, if your use is on a website, the unauthorized work is much easier to remove than if the use is in a print publication.

Assessing Your Risks

To assess your risk of using non-cleared materials, consider the following:

• The origin of the work(s) — Is the author well known? This may be riskier. Does the author or copyright holder have a reputation for strictly guarding uses of their works? Is the copyright owner likely to pursue legal action or to negotiate a copyright fee? Is the copyright owner likely to proceed through a trial if they commence an action?
• Who will have access to the work(s) — If it’s being reproduced on the web, then it’s accessible to a huge number of people around the world.
• Analyze your budget — Are you prepared to pay for after-the-fact royalty payments, settlements out of court, court-related fees, and infringement-related legal advice?
• The “political” consequences of using materials without permission — Would bad publicity mean less public funding? What would be the message to the public about respect for copyright law? Would it harm your organization in any non-monetary manner?
• Insurance — Do you have insurance coverage for copyright infringement? Would this use be covered? How would this affect your coverage and premiums?
• Emotional costs — What are the emotional costs of a claim against you for copyright infringement? How would this affect your employees and governing body?
• Inconvenience costs — Weigh the time and inconvenience of dealing with an infringement claim against the advantages of using authorized materials

Consider Alternatives to Unauthorized Use

Before using non-cleared work, consider all possible alternatives to using the work without permission. Are there similar works you could use with permission? Are there works in the public domain? Could an employee create a new work?

Steps You Can Take to Decrease Your Risk

Think broadly when developing your copyright risk management plan. There are many things you can do to lessen your risk of copyright infringement, including:

• Immediately consult your lawyer if you think you may be infringing copyright.
• Where appropriate, purchase insurance that will pay costs such as “after-the-fact” licenses and monetary payments to the copyright owner.
• Implement a written procedure on obtaining copyright permissions. Make sure the procedure is consistently used throughout your enterprise.
• Educate your staff and end users of your content (perhaps licensed content) about fair use/fair dealing and any applicable copyright exceptions. Make staff aware of the penalties for violating copyright, as your organization may be liable for an employee’s infringement.
• Be familiar with the provisions of any licenses you’ve signed, as these are often more restrictive than copyright law. Understand your licenses before signing them, and educate those who use licensed content about the terms and conditions of that use.
• Keep a register of computer software you’ve purchased, how many licenses you’ve purchased for each program, and who’s currently using those licenses. You should also lock original software in a secure location.
• Conduct periodic copyright compliance spot checks in your organization.
• Research and track developments related to your country’s copyright statute, international developments, court cases interpreting the law, and policies and procedures implemented at similar organizations.
• Attend lectures and workshops on copyright law and license agreements.
• Develop a written copyright policy and keep it regularly updated. Include permission guidelines and fair use/fair dealing guidelines. Make your policy and guidelines available to all in your enterprise.

Be Proactive with Your Copyright Risk Management Plan

It’s best to consider your organization’s policies, guidelines and copyright risk management plan now, and to contemplate how you would proceed in a variety of unclear situations. Two things you can do to be proactive with your copyright risk management plan:

• Organize on-going dialogues of the relevant issues in your workplace and, possibly form a discussion group and role play various scenarios.
• Develop written policies, guidelines and procedures to guide you through copyright risk assessment situations. This will help you manage real copyright risks when they arise.

Learn more about legally using third-party content in our online course Legally Using Images.

For in-depth education on U.S. and global copyright law, see our Copyright Leadership Certificate.