This article touches briefly on copyright-related compliance or governance challenges that business corporations can anticipate [and address] while generating, storing, sharing, receiving, accessing and adapting copyright works. Such governance challenges relate to copyright content generated or owned by the corporation as well as that generated or owned by third parties.
A. Why Is Copyright Compliance Important?
Copyright Compliance has become important for corporations for several reasons. Let us look at some of them:
- Valuable rights accrue to corporations from their copyright materials. Such copyright materials are often of great economic value to the corporation. For example, corporations own copyright in manuals, designs, drawings, schema, code, logos, software and the like, all of which have considerable economic value.
- Copyright confers on corporations, a broad range of rights that can prevent others from copying, performing, distributing, adapting or making derivative works of the copyright materials owned by corporation, unless a license is granted by the corporation.
- On the other hand, the risks of inadvertent infringement of the copyright of third parties is growing rapidly because of the ease of access to the copyright materials of others via the Internet and the World Wide Web and arising from the proliferation of alliances, teaming arrangements and partnerships that lead to sharing of copyright materials.
- Third parties are becoming increasingly protective of their intellectual property rights, including copyright. Their willingness to assert their rights manifests in the form of legal notices, warnings, public notices, law suits and claims for damages, all of which can lead to loss of reputation and money.
- The ability to track and address copyright infringement over the Internet and the World Wide Web is improving, with the use of software and artificial intelligence tools. Especially in the realm of images, this is a trend that more and more Indian companies are experiencing in their operations.
- The importance of copyright has moved from the arts to the organized business sectors. Companies engaged in music, films, television, software, broadcasting and other fast growing business sectors are aware of the value of copyright protection for their valuable copyright materials, or those of their licensors.
- The complex business models for copyright licensing especially in the software business are presenting fresh challenges to companies in India that have to procure, install and use software from global leaders for mission-critical operations as well as for routine functions. Audits and inspections often reveal a large number of “non-compliances” with license grant terms leading to claims for a large number of additional license purchases to settle matters.
- With India being a member of certain international conventions on copyright matters, copyright protection is provided in India for the works owned by people in several countries. The converse also holds true. So copyright has a near-global reach. Obviously this has important implications for businesses in India.
B. The Impact Of Technology – And The Growing Complexity Of Copyright Compliance
Technology proliferation and globalization have had the following effects:
- The proliferation of copyright materials both in types and numbers:
What could the nature of such copyright works be? Corporations deal with a wide variety of copyright works including: designs, drawings, code, software programs, schema, plans, flow charts, documentation relating to apparatus, machinery, software and processes, training materials, website scripts, multimedia aspects of their website, presentations, publicity and promotional materials, In fact, every representation in a fixed medium, of any data or information, would qualify as a copyright work. Given the wide range of copyright works that a business deals with, it would be fair to state that copyright compliance is a broad and complex area of caution for a corporation – bristling with potential risks and issues.
- The growing number of ways of storing, sharing, modifying and distributing copyright materials:
Technological advancements are providing a bewilderingly rich number of options for storing, sharing, modifying, accessing and distributing copyright materials. Whoever thought, just a few years ago, that we could store content on the “cloud”? Or that we could publish books electronically with global accessibility? Or that popular services like YouTube and WhatsApp could allow people to share content across the globe seamlessly?
- Copyright compliance is becoming increasingly complex because of the ways in which the economics of information is impacted by technological advances. In a paper titled The Digital Dilemma, Ms Pamela Samuelson of the University of California, Berkeley and Mr. Randall Davis of MIT enlist the 3 technological advances that have led to radical shifts in the economics pertaining to information. According to the learned authors “(1) information in digital form has changed the economics of reproduction, (2) computer networks have changed the economics of distribution, and (3) the World Wide Web has changed the economics of publication”.
C. Key Factors To Consider
Here are the key factors to consider in designing and implementing a program for Copyright Compliance:
- Those who deal with copyright issues do not generally know what they can do or not do with the copyright materials of others.
- Those who create copyright materials [and we can see from the preceding paragraph, that a wide array of copyright materials are created in a corporation!] do not generally know what rights accrue to them from copyright protection.
- Often, development is outsourced or done jointly with vendors or partners or collaborators. This leads to the need to allocate copyright as between the corporation and its vendors/partners/collaborators. And the need to determine what each can do or not do with the joint copyright output.
- The pace at which technology adds to new options or new risks or new issues is accelerating. These pertain to the speed, ease and modes of reproduction, modification, merger, augmentation, distribution, deployment, storage and destruction of copyright protected works.
D. What Can Corporations Do About Copyright Compliance?
Here are some things that corporations can consider when designing and implementing a corporate copyright compliance plan:
- Plan for compliance. The needs of each business will vary. So it is good to plan for copyright compliance considering the following factors:
- The internal sources of copyright content
- The external sources of copyright materials that a company or its people access in the course of their work, including those from partners and associates
- The generation of copyright content via joint efforts by the company with third parties. Here, the key challenge is to allocate ownership of copyright in an effective way, taking care to provide for licensing/cross-licensing, where needed. And to avoid precluding future use options. Or future adaptation rights
- The internal sources of copyright content
- Pay particular attention to use of images from the Internet. Every such use should be the subject of a license. Whether such license is a paid license or otherwise.
- Get all licenses for third party software reviewed and the gist of such license terms set down in easy-tounderstand language. These should then be explained to the actual users of the software who would otherwise be likely to breach the license terms inadvertently. The efforts taken in this area alone could save the corporation considerable costs and efforts of having to respond to demands based on software license audits and claims for additional license fees and penalties.
- Above all, provide regular training on copyright compliance to select people who are identified as being likely to:
- Generate copyright content
- Acquire or access third parties’ copyright content – including people in charge of the supply chain
- Engage in joint development or creation of copyright content with third parties
- Generate copyright content
ConclusionPlanning and implementing copyright compliance will easily save the corporation from substantial costs and liabilities of third party copyright infringement. And also enhance the reputation of the corporation for good governance.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.