Have you got all your permissions? Several cases have emphasised the importance of ensuring that businesses do not unwittingly breach copyright legislation. Whether playing music to customers on hold on the telephone, allowing radios to be used by staff or using images on websites, it is crucial that businesses have the necessary licences in place.
DOES YOUR BUSINESS USE MUSIC?
Under the Copyright, Designs and Patents Act 1988, the performing, playing or showing of a copyright work, in public, such as the playing of a radio, without the consent of the copyright owner may amount to copyright infringement. Deciding whether the act is “in public”, is a question of fact in each case but as a general rule anything going beyond strict domestic use will be held to be “in public” and this includes where the audience consists of people at work. This is illustrated in a case brought by the Performing Right S
ociety (PRS) against Kwik-Fit (in the Scottish Courts), concerning personal radios being used by employees in bay areas of Kwik-Fit premises where they could be heard by both members of staff and members of the public entering or leaving the bay areas. At a preliminary stage, it was decided that it was possible that Kwik-Fit may be liable for copyright infringement if it could be proved that Kwik-Fit (in particular the local and central management), had authorised or permitted the playing of the music (the allegedly infringing act). It was also possible that Kwik-Fit may also be liable as an occupier of premises who had given permission for employees to bring radios on to the premises with knowledge, or having reason to believe, that the radios were likely to be used to infringe copyright.
It is worth noting that PRS had been conducting inspections across Kwik-Fit branches and were intending to produce the results as evidence of Kwik-Fit's alleged copyright infringement.
THE RIGHT LICENCE AT THE RIGHT PRICE
In the UK, the PRS licences copyright in music and lyrics whereas Phonographic Performance Limited (PPL) licenses copyright in sound recordings.
In 2005, the PPL amended its tariffs resulting in an increase in the annual rates payable for its licences. Recently, the Copyright Tribunal has ruled that the increases were unreasonable and unjustifiable and has ordered a return to the original rates with a modest 10% increase. There are also concessions available for smaller premises and businesses. However, late payers or those trying to avoid detection should beware as if the PPL discover that music has been being played prior to a licence being obtained, this will attract a 50% surcharge.
PPL has indicated that it will appeal against the decision of the Copyright Tribunal so it remains to be seen if it will be successful, or if the decision stands, it will pave the way for licensees to apply to PPL for refunds for the period where the inflated rates were applied.
DOES YOUR BUSINESS USE IMAGES?
Using artistic works such as photographs, digital images and graphic works may also amount to copyright infringement if used without the consent of the copyright owner.
Getty Images (Getty) is one of a number of companies that control the copyright in an extensive portfolio of images. Frequently, images controlled by Getty, or similar companies, appear in the results of internet searches for images. Such companies often use specialist software to track unlawful use of their images and Getty in particular is well known for seeking to enforce its intellectual property rights.
Recently, Getty brought action against a removals company for using one of Getty’s images on its website without the necessary licence. On receiving notification from Getty of the unauthorised use, the removals company took the image down from the website. Despite this, Getty pursued the company through the courts before the parties eventually reached a settlement with Getty receiving damages and interest of almost £2,000 along with its legal costs.
WHAT CAN YOU DO TO AVOID UNWITTINGLY INFRINGING COPYRIGHT?
- Be aware that music has copyright attached to it and where music is used outside of a strictly domestic setting, a licence is likely to be needed from the controller of the copyright. This may include obtaining licences from bodies such as PRS and PPL.
- Be aware that the hits returned on simple internet searches for images are likely to have copyright subsisting in them.
- Check that you have the necessary licences in place to cover the images your business uses.
- Even where a web developer has designed your website, it is prudent to check with them that the necessary permissions are in place to ensure the content is properly authorised or licensed.
- Act quickly in responding to allegations of unauthorised use of music or images with the aim of avoiding lengthy and costly court proceedings.