In a dispute over roofing slates the High
Court said that a business letter can qualify for copyright
protection. Experts say that the protection will as easily apply to
business emails, which could change the way that email is used in
business forever.
Struan Robertson, editor of OUT-LAW.COM and a
technology lawyer with Pinsent Masons, said: "Emails can be
protected by copyright too. Just because it's easier to forward an
email than a letter does nothing to weaken that protection."
Not every letter or email will enjoy copyright
protection, which is reserved for works which involve original
skill or labour and which do not involve copying the work of
another person. Originality in this context does not require the
work to be an original or inventive thought; it only requires
originality in the execution or expression of the thought. However,
where existing subject matter is used by an author, independent
skill must be applied to justify copyright protection for a
resulting work.
In a dispute over the quality of roofing
slates provided by a Danish company Dansk Eternit Holding and its
UK subsidiary Cembrit Blunn, Justice Kitchin said that a letter
produced by Dansk's executive vice president Karl Jorgensen
qualified for copyright protection.
"In the light of the evidence and having
compared the letter to the earlier works upon which it was based, I
have no doubt that its production did involve a substantial degree
of independent skill and labour and that it does justify the
subsistence of copyright," said Kitchin in his judgment. "The
effort expended by Mr Jorgensen was clearly significantly more than
trivial."
The letter was passed on to the roofing
contractor which was the defendant in the action for breach of
copyright and misuse of confidential information. Dansk said that
roofing contractor Apex's circulation of the letter was an act of
infringement.
Apex claimed that the letter was simply a
re-statement of information contained in previous documents, but
the judge found that enough was added that was new to qualify the
letter for protection as a literary work.
"A comparison of the Letter with the documents
to which I have referred shows that there are significant
differences between them. Moreover, and importantly, the Letter
sets out Mr Jorgensen's views about Apex," said Kitchin. That meant
that it qualified for protection, Kitchin said.
Robertson said the ruling serves as a reminder
to companies about their use of email. "This doesn't create new
law, but it may make a few people think twice before hitting the
'forward' button," he said. "We're not going to see a flood of
cases over emails that have been forwarded without permission. If
nothing else, even if it is established that a particular business
email qualifies for copyright protection, it may be difficult or
impossible to quantify any financial loss, meaning that somebody
could sue, win a finding of copyright infringement and receive zero
damages."
