solicitors in breach of copyright
by Roderick Ramage, solicitor, www.law-office.co.uk
first published in New Law Journal (newlawjournal.co.uk) on 21 February 1996 updated 25 August 2015
This article is not advice to any person and may not be taken as a definitive statement of the law in general or in any particular case. The author does not accept any responsibility for anything that any person does or does not do as a result of reading it.
A note “Lawyers in copying agreement” in the Law Society Gazette 30 May 1996 states: “The deal - struck between the Copyright Licensing Agency (CLA) and the Law Society last week - means that law firms who have the past turned a blind eye to illegal photocopying could then and now still can obtain protection by licence.” The most recent update of the CLA Law Licence was in April 2012. Although its library is as well informed and helpful as ever, the Law Society provides no information about the CLA on its website. but its search engine offers Civil Legal Advice.
The CLA is a licensing body as defined in s116 of the Copyright, Designs and Patterns Act 1988 and was established in 1988 as a not for profit distribution company. The CLA makes periodic surveys of its licensees’ use of copyright material, on the basis of it pays royalties to publishers, authors and artists and visual creators whose copyrighted work is recorded to have been used. The legal profession is only one of several sectors that it serves. A standard form licence has been negotiated which enables solicitors and barristers to obtain for an annual fee a license to make an unrestricted number of paper and digital copies of material covered by it, ie books, journals and periodicals published in the UK and other photocopying mandate territories1. It supplies with the licence agreement a list of material excluded from the licence by the publisher, author or artist.
In this article I look briefly at the risk of infringement of copyright by solicitors in the course of their normal work. The most common uses of copyright involved making copies from:
1 text books;
2 statutes and statutory instruments;
3 law reports;
4 precedent books;
5 magazines and journals;
6 others, eg company reports, sales brochures etc; and
7 precedents and other material prepared by other solicitors.
These are available as printed works on paper or in electronic form or both. Copyright material may not be used unless a licence or if the use is permitted by statute. If copyright material is used without permission and its use if not a permitted act, the usual remedies to which the holder of the copyright is entitled are injunction, damages and an account of profits. The infringer can be required to surrender or return copyright of material and to give undertakings against further infringement.
Although the 1988 Act contains a number of provisions permitting of various acts which would otherwise amount to infringements of copyright, the only permitted use which is likely to be relevant in a solicitors practice is copying for research under s29 (research and private study), and even this is likely to be of limited value: s29(1) states:
“Fair dealing with a ... work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.”
Subsection (3) states:
“Copying by a person other than the researcher or student himself is not fair copying if - (b) the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same time and for substantially the same purpose.”
Even if copying relevant pages of paragraphs of a work as part of a solicitor's research were for a non-commercial purpose and therefore would be permitted, the distribution of those copies to colleagues would not be fair dealing, and the distribution to clients and prospective clients, being for a commercial purpose, would take it out of the exception.
A licence is implied in the sale of the precedent book that the material in it may be copied by the user for his professional purposes, but that licence would not extend to copying it to create another precedent for sale or other commercial dealing.
Acts of Parliament are Crown copyright for which a royalty-free, perpetual licence for use is published on www.legislation.gov.uk.
There is no infringement of Copyright where its inclusion in a material is incidental. Section 31 (1) states:
“Copyright in a work is not infringed by its incidental inclusion in an artistic work ...”.
Although some day to day use of copyright material by solicitors is likely to be free from copyright claims, much, in some cases more than might initially be supposed, infringes copyright, for instance general copying of magazine and journal articles. These cases are probably not permitted uses and therefore the use of them is in breach of the owners' rights. The alternative courses of action open to solicitors and others are:
1 check that what you are doing is within the law and if so do nothing2;
2 alter your use of copyright material to avoid copying which is not permitted;
3 obtain express permission in each case; or
4 obtain a blanket licence by agreement with the Copyright Licensing Agency Ltd.
The CLA licence covers virtually all material in items 1 to 5 in the list at the start of this article, but not newspapers, which are covered by the Newspaper Licensing Agency. Licensing is probably necessary for most firms of solicitors. Items 6 and 7 in that list are of course outside the CLA license, and solicitors will probably continue to treat this material as hitherto regardless of the copyright legislation.
More information about the CLA, the law licence, the licence terms and an application form are on CLA’s website at http://cla.co.uk (accessed 23/08/15).
1 The photocopy mandate territories are the United Kingdom, Argentina, Australia, Canada, Chile, Denmark, Finland, France, Greece, Germany, Hong Kong, Iceland, Ireland, Jamaica, New Zealand, Norway, The Philippines, Singapore, South Africa, South Korea, Spain, Sweden, Spain, Switzerland and Turkey. The list may be amended on CLA’s website.
2 As to item 1, do not write an internal memo which says: “continue as at present and hope that no-one notices.” The memo will be discoverable and the comment will be more helpful to the claimant holder of copyright than to the defendant solicitor.
© Roderick Ramage
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