Your lawyer’s role in managing copyright issues is key to your role in copyright management. Managing copyright issues leads to copyright compliance. It’s usually undertaken on a day-to-day basis without consulting in-house or outside counsel.
Examples of copyright compliance issues include:
- A librarian photocopying or scanning an article
- The marketing department uploading photographs to an intranet or website
- The IT department loading computer software onto a computer and agreeing to terms of conditions of use of that software
This post discusses both your and your lawyer’s role in managing copyright and copyright compliance.
Copyright and Your Attorney
There are numerous measures corporate counsel can be involved with in terms of lowering an organization’s risk of copyright infringement. Your lawyer may:
- Let employees know they may consult them about use of copyright-protected materials
- Advise the organization, where appropriate, to purchase insurance that will pay costs such as “after-the-fact” licenses and monetary payments to a copyright owner in case of a copyright infringement suit against you
- Help develop a procedure for obtaining copyright permissions (consistent use of a permissions procedure throughout an organization can be a huge help toward achieving copyright compliance)
- Educate employees about copyright protection and how it applies, how to analyze a fair use or fair dealing situation, licenses for software and other electronic resources, and the penalties for violating copyright
- Review all licenses as they’re negotiated to ensure the terms and conditions meet the organization’s needs
- Initiate a register of computer software purchased by the organization
- Conduct periodic copyright compliance spot checks to ensure the organization is only using licensed content, or content in which it owns the copyright
- Help develop and regularly update a written copyright policy
Also see A Simple Guide to Copyright for Librarians which discusses the role of the librarian versus that of a lawyer in copyright management issues.
Copyright Infringement Cases
Is infringing copyright becoming riskier? It’s hard to say. Two court cases which remain in many corporate counsel’s minds in the U.S. concern Knowledge Networks and Legg Mason.
Knowledge Networks, a U.S. market research consulting company, paid $300,000 USD for distributing copyright-protected articles and research reports to employees via e-mail newsletters. The company had been forwarding articles from publishers such as Reed Elsevier and the Associated Press without obtaining licenses or permissions.
In Lowry’s Reports v. Legg Mason, a jury awarded $19.7 million US in damages to Lowry’s Reports, Inc. for copyright infringement by Legg Mason, Inc. In this case, Legg Mason had purchased one subscription of “Lowry’s New York Stock Exchange Market Trend Analysis” newsletter. Legg Mason employees copied, faxed and disseminated copies of the newsletter, and later posted an electronic version of it on the company’s intranet, over a period of several years.
Risks Involved in Unauthorized Use of a Work
Your organization may face several risks when an employee infringes copyright. You may:
- Face paying a copyright fee after using the copyright-protected work, or defending your organization in a lawsuit.
- Face public embarrassment by the fact you used copyright materials without permission. This may be especially damaging for a publicly-funded organization or an organization that either creates or promotes copyright-protected works.
- Need to stop using the non-cleared work(s). This may encompass actions such as removing an image from your website or re-printing a print publication that includes the work(s).
Assessing Your Risk
To assess your risk in using unauthorized 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 its 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 you’re reproducing the work on the internet, it’s accessible to a huge number of people around the world.
- Budget — Analyze your budget for after-the-fact royalty payments, settlements out of court, court-related fees, and infringement-related legal advice.
- Political consequences — What are 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?
- Insurance — Do you have insurance coverage for copyright infringement? Would this use be covered? How would this affect your coverage and premiums?
- Emotional impact — 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 unauthorized materials.
Your Lawyer’s Role in Managing Copyright
Your lawyer has a delicate role in copyright management. They need to find a balance between micromanaging copyright uses in your organization and avoiding copyright infringement. Take the time to discuss each of your roles and keep the conversation fluid and on-going.
Work with your counsel to develop best practices to lower your copyright risks and take the time to understand what your is role vis-a-vis your lawyer’s role when it comes to copyright management and compliance.
Our Copyright Certificate Programs provide you with in-depth knowledge of
the principles of domestic and global copyright law, as well as practical tools and strategies you can adapt to your particular circumstances.