Copyright - Part 6

Progress Challenge 6:

Short brief

by Colleen Sedgwick

With the below questions in mind, create a very short brief for one (1) of the hypothetical employees, introducing them to the company policies on the use of others’ content and what content Creative Pty Ltd owns.

It should also detail a worst-case scenario whereby someone else’s copyright has been used inappropriately and how the employee should respond.

Consider these questions:

• Would you feel comfortable in creating and maintaining policies that detail the company copyright?

• Would you be able to impart this knowledge on to the two (2) new recruits so that they understand what they can and can’t use?

• Would you be able to make it clear what copyright the company owns?

Complete the above challenge and then click LINK 15 to upload.

Answer

If I were in charge of the studio and had to delegate the work to others, I would have to ensure that all employees understand their requirements. This would mean making sure they follow all workplace policies and procedures, including those on copyrights.

Most of the time, the work done by the employee usually stays with the organisation they work for, and if I were employing other people to do the work for me, I would need to put it in writing before they start the job (as in writing up a contract). And to make it clear as to what they can and can't copy, I would also issue them with a manual or document of some kind so they understand what their rights and obligations. This is how I would 'impart' this knowledge.

So I don't have any problem creating and maintaining such policies as it is my job to do so (and failing to do so can not only cost me financially in court, but also cost me in future opportunities and earnings, as this would also cost me my reputation on top of that). Hence, I feel more comfortable maintaining these rules than with the costs of failing to do so.

If the client wanted ownership of the work, they would have to pay extra if the work is to be reassigned to them. Again, the copyrights associated with working with companies with registered trademarks are complicated, but we know they are registered when their logos and other designs have a ® or TM symbol next to them¹, and often, I would have to acknowledge that (and get my employees to acknowledge it as well). This is what I would have write down prevent any infringement on another company's copyright:

<Insert product name here> is a registered trademark of <insert company name here>

However, I would also quote the IP Australia's policy on Copyright infringement²:

You must ensure you do not inadvertently infringe someone else's IP rights. This section describes how to develop a basic infringement avoidance strategy, and how to respond if you are accused of infringement.

How to avoid infringing on others' IP: Infringement can be costly so its best to take proactive steps to avoid having to remedy the infringement of others' IP.There are a number of basic steps you can take to avoid infringing the others' IP rights.

Search and be sure: As part of good business practice you should conduct a search before going public with a new logo or product that might inadvertently infringe on others' IP rights.

Identify your IP: Your IP includes registered rights as well as business critical information, such as customer lists and specialist knowledge. Identifying and reviewing the IP which is owned by your business is the first step.

Maintain your rights: If you own registered IP, keep a track of important dates such as renewal and ensure your details are kept up-to-date on all registers, both in Australia and in other countries.

Get permission for source material: Avoid the use of any material that is sourced from another person without obtaining specific permission. Permission is often referred to as a 'clearance' in relation to IP rights.

You should be vigilant in always asking about the source of any material provided to you and the clearance, if any, of rights in that material.

Retain ownership records: Maintaining documents that record any permissions or steps taken to try to confirm your ownership of the rights or your entitlement to use them may help you to prove that any infringement was innocent, rather than deliberate. This could substantially reduce any liability if you have infringed.

For example, under the Copyright Act 1968, although knowledge of an infringement is not necessary to prove infringement of copyright, knowledge does have a major impact on the damages a court will award.

If a court finds that an infringer did not know and had no reason to believe that there would be an infringement, the court cannot order the infringer to pay damages. Instead, the infringer is ordered to pay to the owner of copyright the value of any profits obtained from the infringement.

If you are alleged to have infringed on someone else's copyright³:

Dealing with an alleged infringement: You may be accused of infringing someone else's IP rights. You will usually find out about the alleged infringement via a letter of demand.

If you are accused of infringing another's IP, you could consider seeking the advice of an IP Professional.

Stop the infringing conduct: If possible, you should immediately stop any conduct that is alleged to be infringing, without admissions, until you have obtained legal advice that confirms your rights to continue.

By stopping the conduct you will remove the major impetus for the owner of the IP rights to commence legal action - to obtain an interim injunction.

It will also prevent you from creating further infringements that could be the subject of a claim for damages.

Obtain legal advice: Many threats of infringement will not be able to succeed if they are examined closely.

This could be because the IP rights do not exist, the rights are owned by a person other than the one making the threat against you, or infringement cannot be proved.

Unjustified or invalid claims of copyright infringement are prohibited under statutes such as the Copyright Act 1968 and may cause the person issuing the threat to be liable to compensate you for the consequences of making the threat.

Responding to an empty threat: You may receive a threat of infringement that cannot result in successful infringement action. For example, you may receive a threat about IP rights that you clearly own and have documented evidence of ownership.

Such threats can cause disruption to your business: you may have ceased production of specific items while you investigated the claims contained in a letter of demand, and incurred losses as a result.

You should respond to the person issuing the threat and ask them to give an undertaking not to repeat the threat, and pay compensation to you for any loss you have suffered as a result.

1IP Australia (2015): Getting a trade mark in http://www.ipaustralia.gov.au/get-the-right-ip/trade-marks/, Last Updated: 20/10/2015

2IP Australia (2013): How to avoid infringing on others' IP in http://www.ipaustralia.gov.au/ip-infringement/infringing-on-others-ip/, date 23/11/2013 ; see also Commonwealth of Australia (2015): Copyright Act of 1968 - C2015C00586 in https://www.comlaw.gov.au/Details/C2015C00586, last updated 27 Nov 2015

3IP Australia (2013): Dealing with an alleged infringement in http://www.ipaustralia.gov.au/ip-infringement/infringing-on-others-ip/dealing-with-alleged-infringement/; dated 23/11/2013