Business letters can be protected by copyright and forwarding
them to others can be an infringement, the High Court has ruled.
The decision could have implications for email communication because
the same principles will apply.
In a dispute over roofing slates, the High Court said that a
business letter can qualify for copyright protection. Experts
say the protection will as easily apply to business emails, which
could change the way 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 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."
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