Don’t Copy This Article!* How to Avoid Problems With the Copyright Clearance Center

December 4, 2009 | Insights

* Without permission, which is hereby granted.

By Chris Rourk

An enforcement call from the Copyright Clearance Center (CCC) can be quite a surprise. The CCC represents many large copyright owners and its call should be taken seriously. The call may gently start out asking what your company does to prevent employees from making copies of protected works, such as their circulating electronic copies of company subscriptions or articles by interoffice or electronic mail to colleagues or customers. However, if you are receiving a CCC enforcement call, then the CCC likely already knows the answer . . .  a current or former disgruntled employee provided the CCC detailed information. Because copyright law punishes infringers rather than merely compensating copyright owners, penalties for unauthorized copying can be severe. Consider the $19.7 million verdict awarded against Legg Mason for making copies of a newsletter for internal use by employees. Legg Mason’s fair use and implied license defenses did not carry the day. Many other companies who failed to prevent unauthorized copying have also paid a steep price.

To reduce the risk of getting a request from the CCC that your company needs to purchase a license of several hundred dollars a year or more for each employee that might be making copies of protected works, a few simple practices can be put into place, as discussed below.

1. Have a Copyright Policy

Consider obtaining a signed agreement from each employee that states your company’s copyright policy and includes a commitment from the employee to both abide by the policy and to report any violations. The policy can be relatively simple, such as a one or two paragraph explanation of what a copyrighted work is and how to avoid copyright infringement, as explained in greater detail below.

2. Purchase Electronic Publications

Many publications are available online or in electronic format at a substantially lower rate for a large number of employees than for the same number of individual hard copies. Switching from hard copy subscriptions of publications to online/electronic subscriptions not only facilitates the sharing of information within the organization, but also helps to protect against inadvertent unlicensed copying by employees.

3. Periodically Audit Emails and Attachments

Although monitoring all emails for improper copying of protected materials is not feasible, a periodic audit can identify whether there are individuals who are not complying with your company’s copyright policy. For example, a text search of terms such as “here’s a copy,” “see the attached copy,” or “this article” may reveal forwarding of copyrighted material. Spot checking of email attachments that were scanned in (such as having the default scanned file name) is more labor intensive, but could also be performed periodically. Even if such periodic audits do not reveal any copyright violations, the CCC can be informed of the fact that they are being conducted, which may help persuade the CCC that your company does not merit further attention.

4. Alert Employees of Alternatives to Copying

There are some relatively inexpensive alternatives to copying articles or other content that can be used to avoid copyright infringement. The simplest is to forward the original copy of the material by post or interoffice mail. Where that is not feasible, a brief summary of the article and a citation to the publication can be provided. In addition, many articles are available online, and while copying of online content may also constitute copyright infringement, sending an email with only a hypertext link to the article should avoid copyright infringement concerns on your company’s end.

5. Be Prepared for the Call

An effective and knowledgeable response can help to avoid problems if a CCC representative calls your organization. Personnel who might receive such calls, such as librarians, marketing representatives, or in-house counsel, should be familiar with your company’s procedures to prevent copyright infringement and be prepared to discuss what steps are taken.

While there is no way to prevent a disgruntled employee from violating copyrights and then reporting that violation to the CCC, the use of the practices described above can be offered as a defense to charges that it is the company, and not the employee, that is liable for such copyright infringement.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.