MHA | Avoiding the Copyright Web
NFP e News November 2023 4

Avoiding the Copyright Web

Posted on: November 20th 2023 · read

With a cost of living crisis impacting the day-to-day running costs of a charity together with volunteer and staff shortages, charity leaders have a lot on their minds. Understandably, the tiny details of day-to-day charity operations, such as checking the image rights for the front cover of the monthly newsletter, may be missed.

And yet that image could end up costing the charity thousands of pounds. Breaching copyright is considered an emerging threat to the sector, alongside data breaches. In a recent Ecclesiastical Insurance survey of charity decision makers, a fifth of charities have grown more concerned about these two risks since 2022¹. Copyright infringement is an area that many charities either don’t think about or don’t consider a potential risk. This attitude could end up costing them dearly.

What is copyright?

Copyright is legal right that protects the expression of an idea, rather than the idea itself. There’s no copyright on the view of a tree in front of a lake, for example. However, if a photographer chooses what they consider the perfect lens, light setting and angle for the shot, and edits the image afterwards, the result is an artistic expression that is potentially protected by copyright. Expression can take the form of an image, video, illustration, literary work or piece of computer code, amongst others. A copyright infringement occurs when copyrighted material is used without permission. In a digital world, this is worryingly easy to do.

Let’s say a charity uses our lake view picture to illustrate a blog on its website. It may not consider the possibility of a copyright breach for several reasons:

  1. The image isn’t copyrighted, because it’s not displaying the copyright © symbol.
  2. It’s on the internet, where content is generally free.
  3. It has charitable status – so there may be an exemption in law.
  4. It is a small charity with limited reach and income – even if there is a copyright holder, they won’t see it or think it is worth pursuing a claim.

Unfortunately, none of this stands up.

A dangerous view

Views 1, 2 and 3 are common myths. View 4 may convince charities that, whilst the theoretical risk is real, the chances of being sued for copyright breach are slim to non-existent.

They’re too small, too poor, or too obscure. The internet is too big. They’re a charity – who would take money from a worthy cause over a blog post?

This is a dangerous view. As a specialist insurer, Ecclesiastical Insurance have noticed a rising number of Professional Indemnity claims due to copyright infringement since the pandemic. Over a quarter of claims in the past three years have been for either data breach or copyright infringement.

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The impact of these claims on charities can be sizeable – not just in terms of potential financial impact, but also reputationally too,”

“There is additionally the challenge of the time and effort taken to deal with a claim like this, which can put pressure on staff and volunteers.”

Faith Kitchen, Customer Segment Director at Ecclesiastical Insurance.

A growing problem

Copyright infringement is a growing problem, probably because the pandemic forced more charities to do more online. Smaller charities may not be aware of copyright laws. Charities of any size may be trying to do more with less in difficult times.

But copyright owners are more clued up now than ever. Powerful tools can help them trace copyrighted material across the internet. An archived newsletter may be hidden from human eyes, but not from digital ones. Owners or their representatives may come after even a small charity because they assume their insurer will pick up the tab.

“Another issue is the international nature of online content,” says Nick Gibbons, Legal Director at global law firm Clyde & Co. “A charity might believe that under English law any damages will be negligible. But if the image can be viewed abroad, foreign laws may apply. In Germany, for example, there’s a completely different way of assessing damages, which can run to thousands of euros.”

The need for good content to fundraise

So the risks are real, but at the same time, good content is essential for fundraising, user experience and stakeholder communications. How do charities create engaging online content without risking copyright infringement?

  • Train relevant staff, volunteers and third parties about the risks of copyright infringement.
  • Look for royalty-free images on sites like Canva, iStock and Shutterstock and equivalents for audio.
  • Gain the permission of the subject owner when taking photographs – this includes taking photos of other people’s works.
  • Create resources in-house. These days, good images and video are only a phone camera click away.
  • Get protected and put relevant insurance cover in place.
  • If in doubt about any piece of content, don’t use it.

Take legal advice - other parties sometimes target charities, claiming to act on behalf of copyright holders. Organisations that create large amounts of content may also want to take a more strategic approach.

“Adopting an Enterprise Risk Management approach can help build resilience,” says Sarah Pearson, Head of Enterprise Risk Management at Ecclesiastical. “In this context it might include deep dives into the causes of copyright risks, what the consequences might be, current controls and if more needs to be done.”

Charities rarely set out to steal copyrighted material, but ignorance is no defence and even inadvertent use can lead to serious consequences. As a default position, a charity should assume everything created is traceable, and not use content unless certain of its copyright status.

1 Ecclesiastical charity sector survey 2023 conducted by YouGov, based on 251 charity decision makers.

The above article was created by Ecclesiastical Insurance Office plc. Advice on Charity Insurances can be obtained from MHA’s insurance partner, Insurance Services Surrey – please speak with your usual MHA contact for more details.

Macintyre Hudson LLP is an Introducer Appointed Representative of Insurance Services (Surrey) Ltd. Insurance Services Surrey is a trading name of Insurance Services (Surrey) Ltd.

This insight was previously published in our Not for Profit November 2023 eNews

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