Wednesday, 28 August 2013

Copyright Issues in the PR Industry

Did you know that posting unapproved clippings on your website is an offense? And that every time you email a client a scanned article or include it in a monthly report you are committing copyright infringement and could be fined heavily for doing it?

A number of Social Diary members have contacted me recently regarding some rather scary letters they've received demanding the removal of editorial clippings from their website. Apparently you are not even given the opportunity to take the material down, but hit with a whopping fine backdated copyright infringement fee on the spot (which is likely to be in the thousands). As this affects the majority of PR people who routinely post articles achieved in the press on their company sites, I've tried to work my way through the confusion that seems to cloud the issue. Read on if this alarms you...

I've spoken to The Copyright Agency who send these kinds of letters, a not-for-profit company who act on behalf of major publishing houses in Australia. In their eyes, the reproduction and distribution of newspaper and magazine articles is seen as no different to CD piracy, and the industry is using the full weight of the law to crack down on this 'crime' that has been overlooked for so long.

You are probably thinking what we thought: if they were truly trying to stamp out this practice would they have not made a blanket announcement to the PR Industry to cease & desist? Instead they are issuing no warnings. The Copyright Agency stated it's because the publishing industry as a whole is suffering and it's one of the measures being taken to recoup money.

Their process goes like this:
-they find a copyright article on your website and take screenshots
-they send it to their client (eg Fairfax) and ask them if they want to pursue it
-if yes, they send you a letter with a fee according to the number of articles on your site
-if you don't pay, they can choose to pursue it through legal channels

My guess is you're either freaking out right now and scrambling to delete your clippings (did I mention screenshots?), or you could just think you'll never get caught. What needs to be understood is that everyone who has ever done this has in effect committed a crime (albeit white-peplum-collar) and gotten away with it. However, that was in the past...now the big boys are cracking down.

So, if you want to be totally safe you either need to stop doing it or buy a license. The Copyright Agency sell licenses enabling companies to send articles internally as well as post on their website. Fees are based on the number of employees, of clients, and of articles sent per month.

As a general example, a PR agency with 5 employees would pay the following:
Base rate for 12 articles posted on their company website in 1 year: $1,204
1 client sent 25 x articles per month: $25 per month or $300 p.a. (articles can be from all publishing houses represented by The Copyright Agency, which appears to be all the big ones)
So if you had 10 clients it would be a total of $3,000 p.a.
GRAND TOTAL $4,204 p.a.

Yikes. A hefty price to pay for a small agency, but if you continue to send the above volume of copyright material you run the risk of being caught. I queried Martina at The Copyright Agency and asked her whether they would ever bother going after a small agency...would it really be worth their while? Her answer was yes, they have done it in the past. My lawyer begged to differ saying it was highly unlikely given the costs of the legal process...however the choice has to remain an individual one.

The simple solution is to get your clients to pay the license fee. A cheap solution is to pull down any clippings you have on your site and either send a link to your client's article or buy the relevant magazine and send it to them.

(This story still scares me, when they plucked a random woman out in the US and fined her $1.9million for illegally downloading 24 songs...nothing quite like being made an example of.)

I consulted the lawyer for the Public Relations Council, Stephen Von Muenster from von Muenster Solicitors & Attorneys for his opinion.

A longer letter is attached below, however the key options Stephen points out are as follows:

-Best to remove any clippings immediately
-OR- Seek permission from each individual publisher if you can
-OR- Purchase a license from a collecting society such as The Copyright Agency
-OR- Consider linking to online versions of the article as that is unlikely to constitute copyright infringement (unfortunately many articles disappear in time)

What about sharing on Social Media?
FYI The Copyright Agency do NOT currently cover social media sharing but may in future. For now, it seems relatively safe. If in doubt, do NOT post a copy of an article on your Facebook - rather, share a link straight back to the original publisher and you should be OK. von Muenster lawyers say: "scanning an article and sharing it via Facebook/Twitter without permission is still copyright infringement. It is permitted when the publisher posts it to their Facebook page and you share via the share button, or retweet on Twitter"

If this is an issue of deeper concern to you, Ragan.com are running a webinar on the topic titled 'How to guard your social media posts, blogs and intranet from copyright infringement' on September 19th, 2013 - for details click here.

See here for further details about The Copyright Agency's licensing fees.
Contact Martina Hegarty mhegarty@copyright.com.au for more info.

FULL LETTER FROM VON MUENSTER ATTORNEYS & SOLICITORS:

COPYRIGHT WARNING
Copyright Agency Limited (CAL) is a copyright collecting society which collects and distributes copyright license fees and royalties for text and images.
It has come to our attention that CAL has been sending letters of demand to some members of our community alleging copyright infringement in respect of editorial content being reproduced on brand websites and requesting back payment of copyright licence fees.
Copyright protection automatically attaches to content that is ‘original’ and subsists in material form, including literary and artistic works. Text and images comprising editorial content would be works in which copyright subsists. Copyright affords the owner the exclusive rights to copy, publish, perform, broadcast, adapt, sell, license, import, communicate to the public and reproduce in material form (including on the internet) copyright protected creations.
The reproduction or copying of content in which copyright subsists constitutes an infringement of that copyright. An infringement of copyright will be deemed to have occurred where a substantial or important part of an original work is copied. The reproduction of editorial content on a brand’s website would constitute infringement of the owner’s (usually the publisher’s) copyright.
In order to avoid infringing copyright, brands should refrain from reproducing editorial content on their websites without permission from the publisher or a license from a collecting society such as CAL. As an alternative, brands may consider linking to online versions of the relevant editorial content as linking in such a way is unlikely to constitute copyright infringement.
This is general guidance only in respect of this issue. Should you have any specific concerns regarding your use of any editorial content, you should seek legal advice. von Muenster Solicitors is a specialist in intellectual property, particularly in the online and social media space.

Telephone: 02 8221 0933 email: info@vmsolicitors.com.au
Website:
www.vmsolicitors.com.au

8 comments:

  1. This is terribly scary and makes it so difficult for us to share all our coverage - and be proud of the fruit of our labour. I had heard about companies being warned and sued so months ago we purchased a license. Better safe than sorry...

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  2. Amanda Kuhn @ Missy Mischief PR30/8/13 2:11 pm

    I would assume that if you receive the article via PDF, link or sound byte directly from the journalists/programming director then it is considered legal to use? I always send a note thanking the publisher and asking if I can have a copy for my files/use. I only every have posted coverage that I have received directly from the journalists. This is ok - right??

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  3. As a senior staff member at a magazine, I have always been advised by our legal team that people are very welcome to post an article if it is a 'tear' from the magazine, eg a PDF in full, ideally credited to the magazine. You are also okay to rip out a page or pages and scan those in.

    Where people run into problems is if you post individual images, or words, without showing the entire context with a page number, magazine name, etc.

    Our understanding is it is perfectly acceptable to circulate a scanned article. Particularly if it is for internal use, or for a client's viewing, and not for publication online.

    If it is for publication online, the quick and inexpensive solution is to get permission in writing from the magazine. As long as you credit them, it isn't generally a problem.

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  4. Thanks so much for bringing it to attention. I assume the same rule applies to freelancers who post their work clippings on personal websites, however what if we still retain copyright?

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  5. Thanks for the heads up!

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  6. Wow! Eye opening stuff, and I was just about to make the mistake!... Thank you!

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  7. Does this apply to international clippings as well as Australian ones?

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