Copyright Law in Practice

Have you ever copied an article into an email to send to a client? Maybe pulled together some links and slapped your letterhead on it for a newsletter? Or reproduced an article on your firm’s blog in order to generate discussion about an important development? You may be guilty of copyright infringement.

And while enforcement has lagged, the tide is changing. Sooner than you can say “fair use”, you might find yourself on the receiving end of a formal letter from a copyright holder who is none too pleased that you’re piggybacking on their hard work.

What is fair use?

While many people think that fair use applies to any reproduction for commentary or discussion that doesn’t directly contribute to your revenue, this simply isn’t true. It isn’t so much the “how” of your reproduction, but rather the “why”. Fair use is meant to protect non‐commercial use of copyrighted material. Commercial doesn’t mean “paid for” ‐ it means that it is being used for a commercial purpose.

A quick survey of the worlds leading new providers – the major newspapers and news agencies - including New York TimesBloombergReutersForbes and The Economist found that these publishers and other leading publications were both keenly aware of copyright infringement as a growing issue particularly with framing and linking, and that it is something they police regularly.

On a first offence, a copyright violator would be advised to license the content or remove it. Failure to do either would result in escalation. When asked if they distinguish between someone leveraging content – say, by reproducing part of an article in order to drive engagement with an issue or awareness of a particular product or service – and outright copying, the answer is simply “no”.

All copyright violations, when found, receive a cease and desist notice. People or firms that systematically bend the rules by creating tools to frame and/or use linking for commercial purposes making content available to others to use freely, or worse accessing tools that skirt copyright laws by framing or linking to content without licensing the content for such purposes are the perpetrators which publishers are most on the hunt for!

And while it might seem harmless, copyright violations can harm your reputation, and your business. You may be required to pay compensation to the copyright holder, remove the copyrighted material, and any proceeding in which you are named would be publicly searchable, online, forever. Try explaining that to your clients. In the 90s in the USA commercial copyright violation involving more than 10 copies and value over $2500 became a felony. So be careful, copyright violations are serious business.

So how can you engage your clients, provide value, and stay on the right side of the law?