copyright risk management

Below is an editorial about risk management and copyright from the 4th issue of the 2002 volume of The Copyright & New Media Law Newsletter. This is a print newsletter published four times per year. This print newsletter began publication in 1997 and we are thrilled to be in our 7th year of publication with subscribers from over 20 countries. If you want further information on this print newsletter, or a sample copy, please email me at: lesley[_at_]copyrightlaws.com.

Best,

Lesley

Lesley Ellen Harris

Editorial on Copyright Risk Management
(originally published in The Copyright & New Media Law Newsletter)

Locating a copyright owner can be a daunting and often impossible task. The Internet has made the task somewhat easier but the problem still remains. You
want to reproduce a certain print work, for instance, and despite all your online searches, telephone calls, e-mails, faxes and snail mails, you are at a
dead end. Should you use the work anyhow? It is unlikely that any copyright
laws around the world would consider all your efforts as an exception to the copyright law and consequently permit you to use the work without permission.
So what do you do?

If you live in Canada, you may apply for an "unlocatable copyright owner" license from the Canadian Copyright Board. In 2001-02, 31 applications were filed with the Board and three licenses were granted. Licenses may be granted
for a five year period, for the use of published copyright works, in Canada. However, before a license is granted, you must prove to the Copyright Board that every reasonable effort has been taken to locate the copyright holder. Publishers, archives, television producers and others have obtained these licenses since they were first made available under the Canadian Copyright Act
in the 1998 amendments to the Act. Since 1990, 110 licenses have been issued. A list of the licenses is at:
www.cb-cda.gc.ca/unlocatable/licences-
e.html.

If you do not live in Canada, you have two choices. First, do not reproduce the work; find another appropriate copyright work that suits your needs. Second, reproduce the work, fully aware of the risks you are taking. What exactly are those risks?

There are basically three risks you may face. First, you may face paying a copyright fee after using the copyright work, or in the worst scenario, a law
suit. Second, you may face public embarrassment by the fact that you used copyright materials in which you did not have the permission (which can be damaging especially for a publicly-funded organization or an organization that
either creates or promotes copyright works.) Third, you may need to stop using the non-cleared work(s) which may encompass such things as removing an image from your Web site, or re-printing a print publication which includes the work(s).

Before using non-cleared work, consider all possible alternatives to using the
work without permission. Are there similar works you could use with permission? Are there works in the public domain you could use? Would it be
possible for an employee to create an original alternative work?

To assess your risk of using non-cleared materials, consider the following:
.. the origin of the work(s). Is the author well known, as this may be
riskier. Does the author or copyright holder have a reputation for strictly guarding uses of its materials (e.g., Disney and Bob Dylan are examples of copyright owners who have this reputation.) Is the copyright owner likely to
pursue legal action or to negotiate a copyright fee? Is the copyright owner likely to proceed through a trial if he commences an action?
.. who will have access to the work(s)? If it is being reproduced on the
Web, then it is accessible to a huge number of people.
.. analyze your budget for after-the-fact royalty payments, settlements
out of court, court-related fees, legal advice for dealing with an alleged infringement of copyright.
.. what are the "political" consequences of using materials without
permission? Would bad publicity mean less public funding? What would be the
message your organization is giving to the public about your respect for copyright law?
.. do you have insurance coverage for copyright infringement? If so,
would this use be covered by this use? How would this affect your coverage and premiums?
.. what are the "emotional" costs of a claim against you for copyright
infringement? How would this affect your employees and governing body?
.. weigh the time and inconvenience of dealing with an infringement claim
with the advantages of using unauthorized materials.

In the end, you must make a decision with which you are comfortable, is consistent with other policies of your organization, and is justifiable in the
circumstances.

Lesley Ellen Harris
Editor

libraries[_at_]copyrightlaws.com

Email me to be kept up-to-date on
copyright and licensing issues; I'll
add you to Copyright, Licensing &
E-Commerce News! Received on Mon Jan 27 2003 - 14:02:48 GMT