Fancy seeing the latest blockbuster before it is released officially? Careful!

Despite the copyright warnings which we are all familiar with at the start of films, it seems that some people just haven’t got the message. Indeed, copyright specialists continue to be perplexed at the moral grey area which persists in people’s minds over copyright theft.

This may, in part, be down to a lack of understanding about what copyright is and what it covers. Copyright is actually a very straightforward legal right and boils down to the 2 concepts contained in the word ‘copyright’ itself: ‘copy’ and ‘right’.

The law of copyright, in Guernsey contained in the Copyright (Bailiwick of Guernsey) Ordinance, 2005 and it regulates the right to copy literary work such as books, articles and magazines, artwork such as photographs, cartoons and drawings and dramatic and performance works. For you as a business then, copyright is critical to the material published in your sales literature, the catchy theme tune you had written to go with your TV advert, the software used by your employees in your business and the photographs you had specially commissioned for your new website. All of these are examples of copyright material which is likely to exist in your business.

Busted for blockbusters

A good example was reported a few weeks ago when a university graduate, Mr Nimley, was jailed for using his iPhone® to record the latest cinema blockbusters. Emmanuel Nimley, aged 22, used his phone to record the movies, before uploading them onto the internet. From there, people could watch the movies or even burn them onto DVDs to be sold illegally on the black market .

Mr Nimley was found to have recorded Alice in Wonderland, The Green Zone and several other blockbusters when those films were first screened in his local cinema in Harrow. He was discovered after cinema staff became suspicious and because the films contained sophisticated technology with an embedded security code which allowed the authorities to detect that the recording had been made in the Harrow cinema on the first screening of the films.

The judge noted that some people might think Mr Nimley’s actions amounted to ‘harmless fun’ and that new releases were fair game. Dispelling this notion, the judge stated that the fraudulent making and distribution of copies deprived the film industry of revenue unfairly. Noting that in today’s internet-dominated world it was difficult to imagine a wider audience, the judge noted that Mr Nimley’s dishonesty struck at the heart of the film industry. It was estimated that the loss to the UK film industry alone amounted to half a billion pounds.

Copyright in commerce

The case is believed to be the first case of an offender being jailed for copyright theft. Whilst it is hoped that the sentence will serve as a deterrent, the sad reality is that breach of copyright is widespread and is often not taken seriously by businesses.

Not only do businesses need to be alert to the scope for their business to be found liable to third parties for copyright breaches, businesses also need to take steps to ensure that their own copyright is protected and enforced.

Check copyright content

As far as third party copyright is concerned, when did you last do an audit of your software licences? Are you sure that every computer in your company only uses software which is properly licensed? If it isn’t, you could be committing a breach of copyright and exposing yourself to significant damages, as well as litigation in which you could be ordered to surrender possession of any pirated software or material which breaches third party copyright. This can be critical if and when you seek to sell your business on. A purchaser will want to know that appropriate licences are in place.

On a more immediate basis, do you play music in your premises? Have you given any thought to the need to obtain an appropriate licence for that activity from the Performing Rights Society? Do you use clips of songs or photographs or other artwork in your PowerPoint slides? Have you got permission to do that? Do your employees copy clippings from newspapers and journals? If you do, be aware that this may well breach the copyright of third parties unless you have a licence from the relevant body.

Cutting copyright cons

And what of the copyright material your business owns? This will include material (literary and artistic works) which your employees produce in the course of their employment. For example, if you are an architect the copyright to those plans your employee drew up belongs (at least in the first instance) to you. If your employee goes elsewhere and copies those plans, you could have a breach of copyright claim against the employee. Similarly, the copyright in those slides and notes for that training seminar which your client relationship manager drew up will belong to you.

Not persuaded? The fact that this is not an academic discussion is demonstrated, helpfully, by a case involving the world of academia. Earlier this year it was reported in The Times Higher Education Supplement (4 August 2010) that one Professor Donald Weetman had claimed that Newcastle University had breached his copyright. Professor Weetman complained that the University had used slides and materials which he had designed during his temporary contract when the replacement lecturer had taken over. Professor Weetman claimed that he had asserted copyright over the materials in writing and that this had been agreed to by the University verbally. The University claimed that this was not agreed to and was contrary to the University’s policy.

The outcome of the dispute isn’t known, but it underlines the kinds of problems you can encounter if you don’t take care to ensure that your copyright is protected. In simple terms, where an employee produces materials in the course of employment, you will own the copyright. However, you should make sure that your contracts with your employees contain clear and adequate protection for the copyright works which are produced in your business on a day to day basis.

In contrast to the situation regarding employees, if you ask a third party to do work for you under contract, you will not own the copyright unless you get an express transfer (or assignment) of that copyright to you. That assignment should be in writing and cover all rights (moral and legal) which the third party could assert in relation to the copyright material.

Copyright conclusions

Save yourself a blockbuster headache. Educate your staff about copyright and ensure that you get copyright in anything you ask a non-employee to do on your behalf by an appropriate assignment.

Go on – cop those copiers…