copyright risk management

[Lesley Ellen Harris <lesley@copyrightlaws.com>]

Below is an editorial about risk management and copyright.  It is 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: libraries@copyrightlaws.com.

Best,


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@copyrightlaws.com
lesley@copyrightlaws.com