It’s easy–and costly–to run afoul of copyright in the Internet age. But if technology has escalated infringement, it has also brought new solutions that make it simple to comply with copyright law and still embrace the sharing that is the digital workplace’s most valued asset.
The action was simple enough: one senior executive regularly forwarded copies of digital material to two other executives. It’s the kind of routine, rapid-fire information swapping that’s done on the fly every day in offices. Check. Next task. The tab, though, was anything but common. To settle the resulting copyright infringement lawsuit, the executives’ employer paid $500,000.
Copyright is an essential tool in the spread of new ideas, and the workplace has become ground zero for infringement. Ask employees up and down the corporate hierarchy, and they’ll tell you that whisking information electronically to co-workers is integral to their jobs. Their employers will emphatically agree.
But unauthorized swaps of information also carry enormous potential risk: Ordinary office exchanges, so natural to the digital world, can easily violate the copyright rights of others and bring costly lawsuits or settlements. Now the same technology that has dramatically defined the Internet age is drawing a new roadmap to compliance, with software tools that simplify adherence to copyright requirements.
Literary works: blogs, books, cartoons, emails, letters, magazines, memos, newspapers, newsletters, trade journals, training materials and other written material, in paper or digital format.
Computer software: on disc, downloaded or in other formats.
Pictorial, graphics and sculptures: three-dimensional artworks and other creations, as well as two-dimensional cartoons, graphical images, maps and photographs, in paper or digital format.
Architectural works: buildings and the like.
Sound recordings and accompanying words: recorded or performed on compact discs, phonographic records, podcasts or other media.
Audiovisual works: motion pictures, multimedia presentations, demonstrations and slideshows, in analog or digital format.
Dramatic works and accompanying music: plays and screenplays, regardless of the medium in which performed or displayed.
Pantomimes and choreographic works: dance and mime performances.
What Is Copyright, and Why Is It Important?
As a prolific and energetic protector of the nation’s creative output, copyright law encourages resourcefulness and clever creativity. The idea behind it is to grant ownership of the creative aspects of original works to the individuals and businesses that create them. Any original work written, recorded, or captured in some fashion is protected by copyright. That includes art, music, and literature, to be sure, but also research, news, blogs, and e-books. The U.S. Copyright Office handles the registration of 550,000 copyright claims annually and this is only a small portion of the works that copyright protects.
With its ability to whisk information through cyberspace at the click of a key, the Internet, like copyright, is at the heart of new thoughts and ideas. In many ways, it’s the perfect union, pairing fresh creativity with an engine for global transmission. The result is that access to vast stores of information has become equal opportunity: Everyone has access. No longer reliant on corporate librarians to secure information, employees are sharing data whenever and wherever they want.
Copyright creates a form of ownership in original creative works, which the law grants to the creators of the works and protects through copyright infringement lawsuits. So any time employees share content, there’s risk–substantial legal and financial exposure–but ethical as well. In many cases, companies have a greater stake in copyright beyond observing protections for the works of others. They, too, have intellectual property they seek to protect and an interest in the application of a form of the Golden Rule: respect others’ intellectual property as you would have them respect yours. Even if they don’t create any new works or ideas of their own, systematically disregarding copyright requirements contradicts the values that are integral to most corporate missions. Observes Chris Gannon, vice president and general counsel for Blue Cross & Blue Shield of Vermont, “You can’t say that integrity is a core value and then be a scofflaw on copyright infringement.”
The Realities of How Employees Use Information
How do corporate employees put information into motion? Email is the primary vehicle. A whopping 80 percent of employees use it to send links to content or to attach documents, according to an extensive report published in February 2010 by Outsell Inc., a Burlingame, California research firm. Nearly half (48%) of knowledge workers surveyed cut-and-paste content directly into e-mails. As Outsell points out in the 28-page report highlighting its findings, sending a link is often in compliance with the obligations created by copyright law, while attaching documents or cutting and pasting often is not — but the distinction appears lost on users.
How Does That Copyright Policy Work Again?
Call it risky business. While employees are aware of their organization’s copyright policies, most don’t know the details.
Source: Outsell Inc., “The State of Copyright in the Digital Age — What is a Publisher to Do?” 2010
Outsell finds other distinctions are lost, too. One is the difference between free information and freely shareable information. Fifty-one percent of respondents agree that information they obtain online or in print at no charge can be shared without permission. In most cases, it can’t. When content is paid for, restrictions are more obvious to respondents: 44% agree it is not permissible to share information they pay for. But 24% believe it is. It usually isn’t.
Despite the apparent indifference, copyright requirements register on a surprising number of workers’ radar, Outsell reports. Forty-seven percent think about copyright before forwarding information. More troubling is Outsell’s finding that 31% are ambivalent about it, and 23% don’t think about it at all.
That may be why information managers say copyright is more important than it was a year ago, according to a survey by U.K. publisher FreePint. (See chart, “Interest in Copyright Is on the Rise.”) No doubt one factor boosting awareness is the spate of copyright-related news stories. The infringement lawsuit against Google Book Search grabbed big headlines, as has a high-profile lawsuit against Georgia State University alleging widespread disregard for copyright in its consistent reproduction of large numbers of articles and chapters without consideration of the rights of the copyright holders.
“Prominent copyright news stories raise the issue to the forefront and cause some people to change their actions,” agrees R. David Donoghue, an intellectual property litigator for Holland & Knight and author of the Chicago IP Litigation Blog.
“But the bigger copyright issue is the incidental or unintentional infringement, such as an engineer who needs a few chapters from a textbook. That kind of copying is so prevalent that companies can’t rely on cautionary news reports to inform employees, says Donoghue. Responsibility for educating them, he adds, rests with employers and their employees. (See “What’s Protected by Copyright?“)
“There’s an increasing recognition among copyright specialist lawyers that a company that gets caught forwarding or otherwise infringing publications has a serious problem and should expect some pretty serious consequences.”
Thomas Kirby, senior litigation partner at Wiley Rein LLP
Taking Responsibility for Compliance
So how does a company reach all of the employees it needs to about copyright? An important first step is taking responsibility to educate employees about compliance and then putting protections in place. (See “How to Create a Compliance Policy“)
For many employers, that process begins by acknowledging that unauthorized use of copyrighted materials could cost them big bucks. Multimillion-dollar infringement lawsuits are a genuine risk.
Managers regularly shrug off infringement risks in the mistaken belief that, if caught, their employers face only modest settlement costs. They assume typical settlement payouts total relatively small sums, such as three times subscription costs, or that purchasing additional subscriptions will bring them into compliance.
Not true. The tab for infringement has risen dramatically. In 2003, publisher Lowry’s Reports Inc. won a $20-million jury award against investment firm Legg Mason for systematically faxing copies of a daily and weekly newsletter published by Lowry’s.
The case and its substantial award motivated more than a few corporate counsel and librarians to sharpen their companies’ observance of copyright requirements. That’s smart strategy, because copyright infringement lawsuits are on the rise, with many being settled quietly and out of the headlines. But, still, within the hallways of many companies, awareness of copyright often remains limited and casual.
“When I tell them they’re talking about statutory damages and exposure to millions of dollars in judgments, they express great surprise,” says Thomas Kirby, a senior litigation partner at law firm Wiley Rein LLP in Washington, DC, who frequently represents publishing companies.
But not for long, says Kirby, who represented Lowry’s Reports in its suit against Legg Mason. “There’s an increasing recognition among copyright specialist lawyers that a company that gets caught forwarding or otherwise infringing publications has a serious problem and should expect some pretty serious consequences.”
The following 10 steps will help craft a policy that meets your company’s needs and decreases your risk of infringement.
Tap your organization for input. Helpful suggestions for issues to address in your policy can come from a variety of departments. In addition to legal, compliance, and library/ information services, expand the policy team to include IT, marketing and corporate communications.
Establish your policy objective. Be clear on why your organization is implementing a copyright policy. Maybe the goal is for your company to fulfill its obligations under copyright law. Perhaps it is to provide employees with a uniform approach to addressing copyright issues. Whatever the reason, state it concisely.
Define copyright. Explanations of copyright law and what it covers don’t have to be complex. Be sure your policy includes concise definitions and examples of information that is and, equally important, is not copyright-protected.
Demystify “fair use.” Fair use’s premise –to allow limited use of copyrighted material without permission –is often misunderstood. Be sure your policy includes details on the factors to be considered when deciding whether a particular use is a fair use, and your organization’s policies for balancing fair use and copyright holders’ rights. Educate employees about the fair use of your company’s own copyrighted materials, and prepare them to address the issue with customers, vendors, or competitors.
Address international copyright issues. If your organization employs workers in multiple countries, provide information to ensure they comply with the copyright laws of the country in which they are based.
Clarify copyright’s reach across formats. When it comes to copyright, pixels are as protected as paper. Be sure your policy clearly explains that copyright covers content across multiple formats. Employees are often surprised to find out that an article is copyright-protected whether it’s in a newspaper, electronic newsletter, website or blog.
Outline compliance procedures. Identify who is responsible for answering compliance questions within your company. Explain the steps employees should take to determine if copyright permission is needed and to request or secure permissions.
Create guidelines for the use of your organization’s copyrighted materials. How should employees handle the issue of works for hire with contractors and other non-employees who produce work for the organization? When is it okay to distribute your organization’s own materials?
Advise on proper handling of infringement. Encourage employees to do the right thing, and to follow specific procedures when they witness instances of copyright infringement within your organization. Outline the steps they should take if they encounter your company’s works infringed on the Internet or in the marketplace.
Once you have a copyright policy, promote it. Many corporate copyright policies are too low profile to be useful, largely unread and squirreled away in manuals and on hard drives. Post yours on the corporate intranet or other shared sites where colleagues can easily find it. Issue periodic reminders company-wide.
When Sharing Information, Size Matters
While much attention has been focused on large companies’ information habits, Outsell’s survey found not-so-big companies to be even more active traders of content. Within medium-sized companies, the number of times per week that employees forward information has increased 77% since 2005, substantially higher than the 63% average across all companies. Employees there say they are significantly more likely to share mission-and time-critical information than they were four years ago. At billion-dollar corporations, according to Outsell’s survey, workers are less likely.
Why the gulf? Call it the perfect storm of infringement: the rising tide of workplace content-sharing colliding with a challenging economy in which companies are under heavy pressure to succeed. The survey results hint at the infringement risks that medium-sized companies incur — by circulating news, data and other information beyond copyright’s allowable limits — as they strive to grow.
|Source: FreePrint study, “Copyright Policies and Practices,” p. 11, 2010.|
When it comes to managing copyright compliance, a major hurdle — and potential risk — is employees’ perception that obtaining permission is a cumbersome process that interferes with their ability to do their jobs.
Fewer than half of knowledge workers believe copyright permission is easy to obtain in their organizations, according to Outsell. Most are either ambivalent about the efficiency with which they’re granted permission, or they disagree that the process is convenient. Their impressions are largely accurate: the outreach and phone calls required to garner permission can absorb hours of work over the course of several days.
Ned May, author of Outsell’s report, isn’t surprised by the survey’s finding that busy employees and managers take a dim view of compliance procedures. “It speaks to the breadth of items on any knowledge worker’s mind today,” says May, director and lead analyst. “We’re all doing more with less, and we’re moving faster.”
May points out that publishers convey mixed messages to website visitors by routinely accompanying articles with multiple sharing options, such as allowing readers to email links and to post article-related comments on Facebook and social news websites like Digg and Mixx. “Certainly it seems fine to share if everyone is enabling it,” says May. His advice? Education is critical.
So far, the education isn’t occurring, especially within corporations. Outsell found that while most employees know their companies have copyright policies, they don’t know how they work. (See chart, “How Does That Copyright Policy Work Again?“) More than three-quarters (79%) think their organizations have such policies. But the fact that a troubling 44% say they don’t know the policies’ details underscores the need for companies to provide mechanisms that facilitate compliance.
Make no mistake: Most employees want to avoid infringing. Employees of different ages take somewhat different approaches to copyright — with seasoned employees in general more aware of their copyright obligations, and younger ones less familiar — but their actions share a common thread. “Most people want to follow the law,” says attorney Donoghue of Holland & Knight. Employees “become frightened when they realize there’s something they’re doing that’s creating liability, and they always want to fix it because they didn’t mean to do it. In this digital culture, they didn’t realize it was infringement.”
It’s true that under-30 employees have more of a sense that all information is free and shareable, Donoghue adds, “yet that group is no less willing to change their behavior when it’s pointed out that copyright law may prohibit some of the sharing.”
Interestingly, a far more immovable force resides in executive suites, especially those of sizable corporations. “In large companies, we often find that the infringer is not a low-level, uninformed employee but instead a high-level executive who views himself as immune to the policies everyone else is expected to follow,” says attorney Kirby of Wiley Rein.
The Annual Copyright License facilitates compliance, freeing employees to do their jobs and share information without running afoul of copyright law.
Making Compliance Easy
Subscriptions and publishing agreements are helpful but limited. Some publishers sell licenses that let employees share articles within their companies from specific periodicals, journals, or newsletters. They permit employees to swap information without infringing on their copyrights.
Better, broader protections come from Copyright Clearance Center’s Annual Copyright License. The Annual Copyright License facilitates compliance, freeing employees to do their jobs and share information without running afoul of copyright law. The license furnishes rights to millions of titles and covers research and industry news as well as blogs, newspapers, e-books and more. It’s a risk mitigation tool for the digital age, letting employees make the most of the advantages of the Internet while still respecting copyright. With it, employees can:
- E-mail online articles to fellow employees and coworkers
- Distribute copies of published articles at internal meetings
- Post excerpts of industry research on corporate intranet sites
- Print and copy published articles to share with company colleagues
- Download content for use at company meetings
- Include published material with regulatory submissions to government agencies
The Annual Copyright License also includes Rightsphere Basic — a rights advisory tool that displays CCC license rights instantly for employees from a simple link in their Web browser.
Sharing is the strength of the digital age, and copyrighted works are the fuel for its collaborative engine. With the right tools, companies can thrive in the new era and grow their way to greater profits.
(c) 2010. Copyright Clearance Center, Inc. All rights reserved. Copyright Clearance Center and the Copyright Clearance Center logo are registered trademarks of Copyright Clearance Center, Inc.
Reprinted with permission
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