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
DISCLAIMER
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).
Notes
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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