UK: Rights and Wrongs in the Information Society: Technology Drives Changes to Intellectual Property Law

Are you sure that all the software that your company uses is properly licensed?

Have you sourced software for your company to use but not seen the licence? Have you bought software from an Internet site or from a "fire" or "liquidation" sale but never received any paperwork to accompany it?

Respondents to a recent survey undertaken by FAST (The Federation against Software Theft) estimated that just under half the software used in the UK is pirated.

Do you have the proper authority to use the images and text that appear on your website or in your marketing materials? If not, you are at risk of being pursued for copyright infringement.

The loss of revenue to intellectual property rights owners from unauthorised use of their works has a massive knock on effect for the general economic development of any particular country and region. More importantly, if you are forced to defend copyright infringement litigation, you will find this a hugely expensive exercise both in terms of your management time and legal fees.

The ease and prevalence of digital copying and the communication of such copies to the public by Internet or mobile phone has led to the requirement for enhanced protection for copyright owners. Protection was given to software owners against the circumvention of copy protection built into their programs.¹ However, that left the human readable elements of electronic material vulnerable such as text, music, visual effects, etc… To address this issue (and to comply with its EU obligations) the UK Government introduced the Copyright and Related Rights Regulations 2003 on 31^st October 2003.² These Regulations bring significant amendments to copyright law.³ For many UK commercial organisations these are changes that will impact on the day-to-day conduct of their business.

1. New Communication Rights.

This is the right of artists, photographers, authors, songwriters and performers of both musical or dramatic works (as well as record and film producers and broadcasters) to control the communication of their copyright works to the public by electronic transmission (including Internet access, broadcast transmission and access by mobile phone). It is now a criminal offence to knowingly make a protected work available either on a commercial scale or "to such an extent as to affect prejudicially the owner of the copyright". This could now enable criminal prosecution against individuals who file share and those who distribute pirated electronic materials. It could also enable criminal prosecution against those who use pirated materials. Therefore it is important for you to have, or obtain, permissions and licences to use any third party material - particularly if you intend to distribute the material or display it to the public by way of your website.

2. Business Libraries and Training.

The "fair dealing" exception to copyright infringement for "research or private study" has been redefined. To fall into the exception, such copying must be for "non-commercial" purposes. So the libraries of commercial organisations will be affected. This means that many commercial enterprises who retain reference material in a library for commercial use will need to review their copying licences. They may have to enter into new licences with their copy agencies such as the Copyright Licensing Agency Limited and the Newspaper Licensing Agency Limited. You can use publicly available third party materials for internal business training but you must give a clear acknowledgement of the owner's rights. Many of your employees will believe that, if material is available to download/copy from a website, then it is free from copyright restriction. That may not be so. Review your internal protocols to ensure your employees comply with the new Regulations.

3. Circumvention of Technological Protection.

The Regulations bring other copyright digital material (such as web pages and SMS messaging services) in line with the protection previously applying only to computer software programs. Therefore, interference with copy protection measures in works of any nature (e.g. encryption of data) will be unlawful - even if you do not in fact copy. This means that the possession of any hacking/cracking software for commercial purposes could lead to both a civil claim and a criminal offence. Is your business research into cryptography? If so, and your actions don’t prejudice the rights holder and you want to make lawful use of copy protected electronic data, then you can complain to the Secretary of State for Trade and Industry if the rights holder won't agree to allow you to crack its protective codes.

4. Injunctive Relief against Internet Service Providers.

Under the E-Commerce Regulations⁴ ISPs can (in certain circumstances) avoid liability for transient or incidental copying or caching as an infringement of copyright. Essentially, they are not expected to police their services but, once notified of infringement, they lose some of their potential protection. Under the new Regulations, the Court has specific power to grant injunctions against ISPs who have been given notice of allegedly infringing web pages/sites but have not taken them down or have been slow to take down. This will allow rights holders to act quickly to shut down file sharing sites and to block the escape of their works to a wider audience.

The new Regulations will have the greatest impact on broadcasters and the media. In addition, many businesses will need new copying licences (with both photocopy and digital copying permissions included). If you buy or license third party digital electronic works for your marketing purposes, you need to ensure that your licences reflect the new law if you want to use those works on your website or for transmission in any digital format. If you supply copyright works in electronic digital format for website or SMS marketing purposes, then review your licences with the copyright owners.

Be warned! Robbie Williams may say that Internet piracy is "great", but the Government’s view (Kim Howells – Culture Minister) is that copyright theft supports "gangs and prostitution". The Government intends to enforce the new criminal sanctions it has introduced.

©Pictons 2003. First published in Pictons' "In the Know" email newsletter.

Pictons Solicitors is regulated by the Law Society. The information in this article is correct at the time of publication in December 2003. Every care is taken in the preparation of this article. However, no responsibility can be accepted to any person who acts on the basis of information contained in it. You are recommended to obtain specific advice in respect of individual cases.