The move to increased online business has exploded the potential for copyright infringement.[1] This can increase your company’s liability in a number of ways, and it’s important to have an understanding of copyright clearance to reduce your exposure.
While “content” is our current buzz-word for that which feeds the social media beast, the Copyright Act and copyright law refer to copyrighted material as “work”. This is an acknowledgement that copyrighted material is generated through intellectual or creative effort, and a nod to the Lockean theory that a person is naturally entitled to the benefits of the sweat of one’s brow. Without copyright protection, many of the products of the knowledge and creative economy would be without economic value.
The categories of things that copyright protects is very broad, attaching to anything that requires an exercise of skill and judgment[2]. This means material including photographs, drawings (including engineering drawings, plans, etc), paintings, renderings, software, lectures, performances, music recordings, and even this blog post are all considered protected under the law. A work can have multiple copyrights – for example, a photograph of a painting invokes copyright considerations for both the painting and the photograph.
At its most basic, copyright grants the copyright owner an exclusive right to make a copy of his or her work (hence the name: copyright). However, the Copyright Act also captures related rights, such as the rights to broadcast, perform, publish, make available to the public, and includes certain rights of attribution and integrity of the work.
In many ways, social media has normalized non-commercial infringement through posting works of others as content. Some of the blame for this lies with section 230 of the USA’s Communications Decency Act[3] and section 29.21 of the Canadian Copyright Act.[4] These are the “user generated content” provisions that provide immunity to service providers for the infringing actions of third party users, the effect of which largely shifts the burden for enforcing against users to the copyright holders, for whom enforcement on social media is much more difficult (generally speaking, there are exceptions). It’s important to note that these exceptions generally don’t apply to things posted by employees or contractors or other non-arms-length parties.
This normalization of infringement means that copyright is often overlooked when developing a website or posting content on that website, which can lead to unintentional liabilities under copyright law. This can mean unexpected costs and legal fees.
Before posting any content on a company or organization’s website, it’s important to ensure that the organization has a right to use the content. This is the process of content clearance: confirming that one has the right to use a copyrighted work in the manner intended without infringing. In a nutshell, copyright clearance involves first identifying who owns the copyright in a work, and then confirming that the organization has the right to use the work, either through an assignment of copyright, a licence to use the work, or (rarely) one of the exceptions under the Copyright Act.
As a best practice, an organization shouldn’t use any content unless it can point to an instrument in writing that confirms from the copyright owner the right to use each piece of content being used, whether that content is an image, text, or the website itself. This includes having written agreements with web developers, freelancers, contractors and employees who contribute content that clearly set out either a licence or an assignment of copyright. If an organization intends to rely on an exception, it would be advisable to seek expert advice, as the exceptions tend to be very narrow and technical.
In the event that an enterprise receives a cease and desist or demand letter for content, it should contact a lawyer as soon as possible. A quick response can lower liability, and it may be possible to negotiate a licence to a work after the fact.
If you need assistance in enforcing your copyright or ensuring you avoid unintentional liability on your website, please contact me at Lerners. I’m here to make your business my business.
[1] Copyright is a beast of statute, and copyright infringement is a breach of someone else’s statutory rights by using copyrighted material without the permission of the holder of the copyright and without the protection of one of the valid exceptions recognized by law.
[2] CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13 at para 16.
[3] See, 47 US Code § 230 available at LII: https://www.law.cornell.edu/uscode/text/47/230
[4] Copyright Act, RSC 1985, c C-42, s. 29.21.
