solicitors in breach of
copyright
by
Roderick Ramage, solicitor, www.law-office.demon.co.uk
first
published in New Law Journal (newlaw.journal@butterworths.co.uk) on 21
February1996
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 the legal photocopying will now be able to obtain
protection by licence." The deal
is that a standard form licence has been negotiated which enables solicitors to
obtain, at a cost of £12 per professional member of staff (partners and
employees, solicitors, legal executives etc) a license to make an unrestricted
number of copies of material covered by it, ie books, journals and periodicals
published in the UK and other mandated territories1. The CLA claims to be mandated by over 1,500
publishers covering 90% of material shown by its surveys to be used by
solicitors. It supplies with the
licence agreement a list of excluded material.
I was asked by my partners to look into this and
think that the findings might be useful to other solicitors, who too may be
asking themselves whether they should enter into such an agreement.
Therefore in this article I look briefly at the use
of infringement of copyright by solicitors in the course of their normal
work. I am not reviewing the copyright
law or advising clients about copyright problems. The most common uses of copyright of others involved making
copies from:
-
text books;
-
statutes and statutory instruments;
-
law reports;
-
precedent books;
-
newspapers, magazines and journals;
-
others, eg company reports, sales brochures etc; and
-
precedents and other material prepared by other
solicitors.
In most cases these are still in the form of
printed works on paper. They can also
be supplied in electronic form and copyright can exist in a computer programme
which a solicitor uses. A solicitor
creates copyright when he creates a document.
This article is concerned only with the use of copyright by others.
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 Copyright, Designs and Patterns Act
1988 contains (according to Copinger and Skone and James - I have not counted)
49 sections "Devoted to the 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 section 29 (research and private study): 29 (1) states:
"Fair dealing with a ... work for the purposes
of research ... does not infringe any copyright in the work ... . Subsection (3) states: "Copying by a
person other than the research ... himself is not fair copying if - (b) he
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."
Thus copying relevant pages of paragraphs of a work as part of a
solicitor's research would be permitted, the distribution of those copies to
clients, other business associates and probably other colleagues would not be
fair dealing.
A licence is implied in the sale of the precedent
book that the material in it may be copies by the user for his professional
purposes, but that licence would not extend to copying it to create another
precedent corporate.
Acts of Parliament are Crown copyright which can be
infringed by unauthorised copying and to which the permitted us by fair dealing
for research applies.
There is no infringement of Copyright where its inclusion in a material is incidental. S31 (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 clearly free from copyright claims, much, in come cases more
than may be initially supposed, infringes copyright, for instance general
copying of magazine and journal articles.
These cases are probably not permitting uses and therefore the
solicitors use of them is in breach of the owners' rights. The alternative courses of action open to
solicitors 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, except for 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
is of course outside the CLA limit, and solicitors will probably continue to
treat this material as hitherto regardless of the copyright legislation.
Notes
1 The mandated territories
are Australia, Canada, France, Germany, Iceland, Ireland, New Zealand, Quebec,
Spain, South Africa, Sweden and the UK.
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 plaintiff holder of
copyright than to the defendant solicitor.
copyright
Roderick Ramage
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