Information Law in Practice

Paul Marett

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138737754
• eBook ISBN: 9781351733373
• Topic: Languages & Linguistics
• Subtopic: Library & Information Science
• Index: Languages & Linguistics

This title was first published in 2003: Law changes rapidly. Since the first edition of this book in 1991 there have been tremendous changes - European Union measures, a new Defamation Act and Data Protection Act, amendments to copyright, and new problems from the Internet. This second edition has been comprehensively revised and updated to reflect these changes. Copyright, patents, and confidential information are marketable commodities needing the protection of law. This is not a book for the legal specialist but a readable guide to information law for those in the information management field. It includes many examples of legal cases and helpful explanations of the different kinds and causes of legal action. One chapter is devoted to electronic data issues and two to copyright abroad and transnational protection of intellectual property. Whilst the main emphasis is on copyright - written, visual, musical and multimedia - other areas of intellectual property, particularly patents, are discussed, and advice given on trade marks, passing off and related issues. The author explains the legal principles of data protection and privacy, libel, freedom of information, official secrets, censorship, obscenity, blasphemy, and racial hatred. Full statute and case references are included in the book. Information scientists, librarians and others in modern information and media management will find this book an invaluable reference for what they can and can't do with information they manage and distribute.

1 Introduction

The supply of information has been revolutionized over the past two or three decades. Even before the Internet took off new technology had added a fresh dimension to storing and accessing information. Data which had previously been kept on shelves full of books or in paper-filled filing cabinets and laboriously extracted by turning over the pages or handling the files could now be stored for instant retrieval in the memory of computers. Paper has not disappeared: it probably never will. In fact the advent of new electronic technology has made possible a vast expansion of paper-based information. Newspapers, journals, magazines have grown in number and bulk. Book publishing has expanded. In every organization, business, professional, educational or leisure-oriented, the photocopier has generated reams and reams more paper. The invention of paper many centuries ago in China and its introduction to Europe around the fourteenth century, was probably the most significant factor in the expansion of human communication, far more significant than the invention of printing, which could never have been utilized without a cheap medium on which to print. There is no sign that we can begin to ignore paper yet, if ever. The information revolution is not simply a phenomenon of the computer age but, of course, it is the computer which has added a vast new dimension and the Internet is the latest manifestation of this.

This book is about Information Law so the first priority is to set bounds on the meaning of the term. The bounds will be set widely, to look at the law covering anything which is communicated, or is capable of communication, between human beings, or to or from or between computers or other information-holding devices, or between such devices and humans. Thus it can cover the material held in an encyclopaedia or dictionary or other reference book or paper. It can relate to such various fields as scientific information, legal information, business information and a host more. To avoid setting arbitrary boundaries included also are other products of the human intellect or spirit such as literature, music and art, even though those do not, perhaps, come within any ordinary definition of information. In other words, our concern is with the material handled by the modern information professional, librarian, archivist or information scientist. We are interested in ownership, purchase, sale and theft, use and misuse. We shall also stray a bit beyond the proper bounds of the subject in order to present a rounded picture of the law as it affects particularly the information professional, as well as the creator, collector and user of our subject matter in the wide definition set here.

The dissemination of information takes in, then, a greatly expanded field of conventional paper-based publishing, transformed by new technological methods, the publishing of information and other material on new physical carrier media, tape, disk and others, and online services which can give access, via the Internet or otherwise, to stores of data in every field of human activity. It overlaps with telecommunications and satellite communication, and merges into the field of broadcasting. The collection and utilization of this involves every possible means of handling it, from pen on paper to the most advanced electronic tools known, or likely to be known in the foreseeable future.

The commitment to this in terms of labour, expertise and capital can be large and very costly, from the work of the originator, through the various stages of dissemination, to the librarian or information broker, or by other means finally to the end user. The protection of that investment is the principal function of information law. The fact that information needs legal protection is rather upsetting to some people. Information is free, they say, there to be picked up by anybody, like pebbles on a seashore. Moreover, they consider it right that it should be free: freedom of information is a basic human right, like freedom to breathe the air around us. Librarians often feel a professional commitment to the freest possible information regime. However, although information in its raw state may be freely available (and this is indeed open to question), it is of no use until it has been sorted and packaged and transported to the end user. The analogy of pebbles on the seashore is less apt than, shall we say, the analogy of North Sea oil. It is there under the sea for anybody who can burrow deep enough, but to extract it, refine it, prepare it for use, and transport it, involves a major investment in skill and training, labour and capital.

Strictly speaking, as will be made clear later, the law does not generally recognize any ownership rights in information as such, or at least that is what the copyright experts say. The Roman lawyers recognized a property right in naturally occurring things once they came into the ownership of an individual, and that is a close analogy to the situation with regard to the ownership of information. Once information has been captured, packaged and recorded in some way, an ownership right, defensible in law, comes into existence. This is the basis of the most important area of information law, copyright, as we shall see later.

In the Middle Ages there was no protection for the products of human intellectual endeavour. The great medieval writers laboured for the glory of God, for the enlightenment of their fellow human beings and, doubtless, for their own reputation, in the sure and certain knowledge that their works would be copied and re-copied, plagiarized and anthologized, with no material recompense to themselves. Indeed it was not until the sixteenth, seventeenth, even the eighteenth century, that owners’ rights in their intellectual property, whether technological or literary, gained acceptance. As society grew more complex, particularly in the nineteenth century, there came an increasing need for the law to protect the products of human inventiveness and intellectual endeavour. There was a general expansion of human knowledge, with great rewards available to those who could satisfy the requirements of an increasingly literate and prosperous populace desirous of things, both material and intangible, which their forebears had lacked. So the idea of intellectual property law to protect those rewards was born, and rationalized by the invention of the concept of intellectual property.

INTELLECTUAL PROPERTY

The terms ‘ownership’ and ‘property’ have been used in the previous paragraphs. The greatest part of this book is concerned with ‘intellectual property’. This is a fairly new term but a useful one, covering the non-tangible products of human inventiveness and intellectual endeavour. It includes information that has been captured or recorded, to the extent that it has been given a definite shape and some more or less permanent form by an author or editor or compiler, in writing, for example, or on a computer or on a sound recording. Intellectual property goes beyond pure information as conventionally understood, for it covers works of imagination and inventiveness as well. The property rights in intellectual property are the subject of intellectual property law.

The area of the law of intellectual property which is probably of most importance to information work is copyright. This covers the right of authors (including editors, compilers, composers, programmers, artists) to defend their compositions (including written works, musical compositions, artistic works, computer programs, sound recordings, films) against infringement by others. Next in importance, but of considerable economic importance, comes the law of patents, which protects inventions that can be produced by, or applied in, industrial processes. Quite apart from their legal aspect, patents are important sources of scientific and technological information. The third major area of intellectual property concerns trade marks and passing-off. These fit in rather uneasily with the general definition of intellectual property and they are of less relevance to the aims of this book so, although it is a fascinating field, we shall look at it only in outline. Confidential information, whether personal or commercial, including trade secrets, is certainly relevant to our theme. Patents and trade marks, with perhaps trade secrets, are sometimes subsumed under the term ‘industrial property’. A good deal of this book is devoted to copyright in its various manifestations, relating as it does not only to the provision of information as such, but also to the whole field of publishing, to broadcasting and also to the entertainment industries.

However, the legal issues involved in the production and communication of what we have loosely defined as information are not confined within the conventionally drawn bounds of intellectual property law. The particular problems relating to data held and accessed electronically have given rise to a specialism in informatics law: such problems include data protection issues and privacy. Every facet of our field is likely to be touched by the legislation on human rights but here we are on uncertain ground until a body of case law has had time to build up. More certain are the legal pitfalls discussed in Chapter 9 in the law of defamation, obscenity, racial hatred and official secrets. Intellectual property cannot be confined within national frontiers, particularly now that it is possible to transfer data to the other side of the world at the touch of a few computer keys. Certain international agreements protect intellectual property transnationally. Nearly every country has its own laws in this field and may, or may not, grant the same level of protection as the foreign owner of intellectual property expects in their home country. These questions have to be discussed.

The remainder of this chapter will be devoted to outlining essential legal background: the framework and divisions of the law, legal sources and processes, legal relations and crime, on the assumption that most readers will not be lawyers.

PROPERTY AND THEFT

Suppose someone is a skilled craftsman and makes, say, a chair. Somebody else takes the chair from his house without permission and keeps it. This is theft:

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. (Theft Act 1968, s. 1, (1).)

The thief can be prosecuted in the criminal courts and can be punished with up to 10 years imprisonment (Theft Act 1968, s. 7) though in a comparatively trivial case like this the punishment will, of course, be much less. Usually the law will be set in motion by the police and subsequent proceedings will be in the hands of the Crown Prosecution Service, not the victim of the theft. (Private prosecutions are not so common.) The victim will get the property back if it has been recovered or, in certain cases, the court has powers to order the thief to pay compensation. However the victim will often have to be content with seeing the thief punished.

Take the case of an author who has written a book. A person takes the manuscript, makes a copy without permission and returns the manuscript. You might say that this person has ‘stolen’ the author’s ideas and words and work, but in the eyes of the law this is not theft: there was no intention of ‘permanently depriving’ the author of the manuscript. Here are two actual examples of this. In the case of Oxford v. Moss, 1978, a student at Newcastle University (not Oxford: that was the name of the person prosecuting) had obtained a proof copy of an examination paper, read it and returned it. He had not stolen anything (except perhaps the confidential information in the examination paper, and the Theft Act does not regard that as property) so he was not guilty of theft. The men who borrowed films to make pirate copies, R. v. Lloyd and ors, 1986, were equally not guilty. (The abbreviations ‘ors’ and ‘anor’ for ‘others’ and ‘another’ are frequently met in case names.) Although the defendants were not guilty of the criminal offence of theft, the owner of copyright in the films could have brought a civil action for infringement of copyright. (Also, depending on the actual circumstances, commercial dealings in pirated copyright material can be a different criminal offence, as we shall see later.) So, unless it is tangible property (or, for example, money in a bank account), the criminal law of theft is not applicable. In any case, the first concern of the owner of intellectual property is not to see the infringer locked up. What the owner wants is:

1. that the other should stop exploiting the owner’s intellectual property, and

2. that the owner should get compensation for any loss suffered.

That is just what the law provides. The main remedies for infringement of a person’s intellectual property are:

1. an order (called an ‘injunction’) to stop the infringer, and

2. damages to compensate for the loss suffered (including, of course, any gain that the victim should have made were it not for the infringement).

In the UK the law always used to take a rather materialistic view of intellectual property rights; compensation was usually for the quantifiable pecuniary loss suffered. In many other countries (most notably France) the law has long protected an author’s ‘moral rights’, for example the right to be recognized as author and the right to prevent the work being reproduced in a manner derogatory of the author’s reputation. The protection of moral rights was an innovation in the UK in the Copyright, Designs and Patents Act 1988.

TERMINOLOGY

Some people are a little confused about the terminology relating to the civil and criminal law. Contrary to the popular view the legal system is not primarily concerned with the ‘criminal’ law, that is the punishment of malefactors. The main function of the law is to regulate the relations, commercial and personal, between individual persons (a legal person can include a company or other corporation as well as an individual) and to settle the disputes between them. This is known as the ‘civil’ law. (Rather confusingly, ‘Civil Law’, usually with capitals, is also used to describe the continental legal systems rooted in Roman law, the law protecting the citizen, civis, contrasted with the English ‘Common Law’ system.) For example, practically the whole of the legislation on copyright or patents is concerned with civil law and not criminal law. If somebody’s copyright is infringed the victim will sue the infringer in the civil courts. The judge will decide the rights and wrongs and award an appropriate remedy to the victim if the decision is in his or her favour.

However, the criminal law will step in on occasion when commercial exploitation of material infringing intellectual property rights takes place. There are penal provisions in the Copyright, Designs and Patents Act and severe punishment can be meted out in the worst cases of piracy. Sometimes action is initiated by local Trading Standards Officers under trade descriptions legislation against manufacturers and traders with counterfeit clothing, videos, sound recordings or computer software. The offender will be prosecuted in the Magistrates’ Court or Crown Court and punished by a fine or imprisonment. This will probably put a stop to the offender’s nefarious activities (at least for a while) but since it does not give the copyright or trade mark owner any compensation the owner may well bring an action in the civil courts as well. It is worth stressing, though, that 90 per cent of the law in general, including nearly all the areas dealt with in this book, is concerned with the civil law, with settling disputes between two parties.

Words such as ‘prosecute’, ‘offence’, ‘punish’, ‘fine’, and ‘crime’ refer to the criminal law. In civil cases we are likely to see the terms ‘sue’, ‘bring an action’, ‘damages’, ‘injunction’, ‘dispute’, ‘lawsuit’, or ‘civil wrong’. We can talk of ‘criminal liability’ or alternatively ‘civil liability’. The word ‘guilty’ ought really to be confined to criminal guilt but in fact is often used in relation to somebody whose acts constitute only a civil wrong. Cases are referred to by the names of the parties. Civil cases usually have such titles as Jones v. Robinson (read aloud as Jones and Robinson), the first-named being the ‘claimant’ (formerly ‘plaintiff’), the party bringing the action, and the other the ‘defendant’ (in Scotland the ‘pursuer’ and ‘defender’). When one party appeals to a higher court against the decision of the court below the party appealing becomes the ‘appellant’ and the other party is the ‘respondent’. (In appeals to the House of Lords the name of the appellant is placed first, thus Jones v. Hulton (a famous libel case) became Hulton v. Jones in the House of Lords.) Most criminal cases are brought in the name of the Crown and take the form R. v. Jones (R. standing for Rex or Regina) read aloud as The Crown against Jones. Where there is a private prosecutor R. is replaced by the prosecutor’s name. In certain criminal appeals you may see the Director of Public Prosecutions, DPR standing in place of the Crown.

SOURCES OF LAW

The framework of the law of copyright in the UK is to be found in the Copyright, Designs and Patents Act 1988 (which we shall refer to as the CDPA). As its name suggests, the Act also includes the updated (to 1988) law on industrial designs and the rights of performers in their performances are included, but the Act has only a few, largely administrative, provisions regarding patents. As regards copyright it is the most important single source of information and anyone working in the information field, whether as a librarian or in any other area, should get to know it thoroughly. The other main fields of intellectual property are covered in the Patents Act 1977, the Trade Marks Act 1994 and the Registered Designs Act 1949 (which is conveniently available, amended up to 1988, as a schedule at the end of the CDPA).

It would be helpful if the whole law of intellectual property could be found within the compass of these statutes. Unfortunately that is not so. A written enactment cannot possibly answer every question. Most Acts of Parliament make provision for the appropriate Minister to make Regulations filling in the detail which would have made the Act unreasonably wordy. A Regulation will be published as a Statutory Instrument (SI), one of thousands made each year covering every field of government. Many Regulations are in force in the field of intellectual property. Even then situations can arise for which there is no solution in the written text. For example, what exactly did the drafters of earlier copyright statutes mean when they used the term ‘literary work? The definitions in the Acts help but still leave a lot of questions unanswered. Does it include a railway timetable or an examination paper or a transient image produced on a computer screen? Suppose some newsworthy person recounts his or her life story to a journalist who then writes it down and publishes it: who is the ‘author? These are actual examples of questions which judges have been called upon to settle in the law courts.

Most people know that there is, alongside the statute law, what is often called ‘judge-made law’. In theory judges only interpret the law. However, in practice, a decision by a judge on a tricky point will form a precedent which will be followed in later cases unless another judge can ingeniously distinguish the facts of the later case from the earlier, or unless it is overruled by a higher court. This strong reliance on precedent is one of the main marks of the Common Law tradition of England and Wales (also of most countries of the Commonwealth, and the USA). The situation is different in the Civil Law countries on the continent and elsewhere (including to some extent in Scotland) where the courts can look to earlier decisions (and to textbook writers) but are not obliged to follow them. In this book, therefore, much attention is given to real-life cases, which is ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Glossary and abbreviations
• Table of cases
• Statutes, statutory instruments and European Union measures
• 1 Introduction
• 2 Protection of written works
• 3 Entertainment and related media
• 4 The work of the artist, designer and photographer
• 5 Electronic data
• 6 Patents and other industrial property
• 7 Copyright abroad
• 8 Transnational protection of intellectual property
• 9 Legal cautions for the information provider
• 10 The future
• Appendices
• Select bibliography
• List of relevant addresses
• Index