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Article Printer friendly page Publishing Law Newsletter - Edition 1 Date: 18/04/2007 Publish and be damned! ************************************************************* There may be times when publishers and authors will want to shout the truth from the roof tops whatever the consequences and whatever their lawyers say! However, most of the time what you want from your lawyers is advice as to what can be said, the consequences of saying something unlawful and how to change the way you state the truth to best protect you from law suits. Balanced, practical guidance is what we aim to provide in this new newsletter. Our lawyers have been providing advice to the music, film, advertising and publishing businesses since 1963 and are well placed to assess the commercial impact of the developing law. Understandably, for an area of law that so directly affects the publishing industry, there are weekly reports or commentaries on further privacy restrictions, code changes or perceived injustices at the hands of High court Judges or regulators. Not all of these reports are accurate and some actually miss the most important practical consequences of developments. Instead of the threat of libel, the primary threat now is an action to protect privacy or confidentiality. This is not a new area of law but it is being applied in a new way. As we point out in one of our articles below this new approach means that anyone publishing a biography needs to carry out extra due diligence on the sources of information, particularly in relation to the previously less regulated field of biographies of the deceased. Just as you were getting to grips with the legal considerations of how to deliver the published word on a digital platform the PCC has added further considerations by extending its remit to regulate podcasts and other audio and video website content as well as copy on newspaper and magazine websites. In another article we re-visit the issue of control over online reader postings. In future issues we will follow further issues impacting across the publishing sector, both online and in traditional fields, from how to protect your brand and rights on an increasingly international stage to the impact of consumer legislation emanating from the European Parliament. We thought it would be useful to our clients, contacts and friends in the world of the published word to circulate our thoughts in this quarterly on-line briefing giving helpful hints as to what to look out for and our views on what has happened in between editions. It is not intended to be a replacement for the in depth advice and assistance that you might need from us but is intended to keep you on top of the issues which might affect you day to day. ************************************************************* In this edition we examine the following topics. New limits on unauthorised biographies Life After Death – Avoiding a death trap “No. 1 Bestseller” - Book Advertising Claims Blogs: Should You Mediate? An Update ************************************************************* New limits on unauthorised biographies Folk singer Loreena McKennett’s recent Court of Appeal victory over an unauthorized biographer has been greeted by the publishing industry as another significant and unwelcome step in the development of “privacy” law. But whilst commentators have extrapolated fairly clear guidance for the authors and publishers of unauthorised biographies of living subjects there has been no analysis of the impact on biographies of the deceased. Until recently the death of a potential subject of a biography released publishers from the more stringent limits in respect of content and allowed the publication of unauthorised biographies that could not have been published during their subject’s lifetime. Claims for libel are personal claims that die with the subject and copyright infringement claims, like that of JD Salinger’s estate, are rare and cannot prevent the publication of third party recollections or confidences. Claims of malicious falsehood, whilst surviving death, only protect against a limited category of untrue allegations. However, it seems that recent cases which have lead to the development of a legal claim of ‘misuse of private information’ may assist potential subjects of biographies in taking their personal stories with them to the grave. The analysis at the heart of a case for misuse of private information begins with the question as to whether the information to be published is about personal matters regarding which the subject of the biography had a “reasonable expectation of privacy”. Examples, which might fall into this definition, include details of personal and sexual relations, personal feelings about certain events, matters relating to mental health or aspects of physical health and diet. Essential to this analysis are the circumstances in which matters are disclosed to the person wishing to record them in a biography. Confidences shared with a friend or carer are far more likely to be considered private than idle chat with a casual lover. Once information is established as being private in quality, it may be protected whether it is in fact true or false. The second stage of analysis is in deciding whether or not the biographer’s right to tell his story outweighs the subject’s right to keep the information private. If the information relates to shared experiences of the biographer and the subject the Courts are more likely to allow the biographer to speak out than if the biographer is simply recollecting matters which have been described to him or her by the subject. If it is in the public interest to publish the information the biographer is more likely to triumph. So far this summary yields nothing new, but what is clear about “misuse of private information” is that the central enquiry is about the nature of the information itself and how it has been obtained by a biographer rather than the effect of its disclosure upon the subject. This is important. Private information is characterised in the McKennett judgement as being a form of property. That property is only destroyed by being released to the public. The Courts have not sought to explore the effect of this characterisation but there is no reason to suppose that, as a form of property, private information should not survive death unchanged in its nature. This means that a subject’s estate should be entitled to defend that property from destruction i.e. from disclosure. There may be practical difficulties for an estate in proving the circumstances in which information has been shared or even in demonstrating that a subject intended such information to be kept confidential after death but such difficulties are not sufficient to deny the availability of the claim. In commercial terms this means that publishers will have to undertake more detailed enquiries of the authors of unauthorised biographies as to the nature of their relationships with the deceased or the source of information that they propose be published. Detailed disclosure of matters behind the book will be as important as analysis of the text itself. ************************************************************* Life After Death – Avoiding a death trap It should not be assumed that a work is out of copyright simply because the author died more than 70 years ago. It is essential to check that the work in question was published during the author’s lifetime, because if it was published posthumously other rules might apply. Publishers and estates might well have rights to protect for longer than appears at first glance. The Copyright Designs and Patents Act 1988 came into force on 1st August 1989. The Copyright and Rights in Performances Regulations 1995 came into effect on 1st January 1996. Until 1st January 1996 the copyright in a literary work published during the author’s lifetime lasted until 50 years after the end of the calendar year in which the author died. After 1st January 1996 that period was extended to 70 years. Some works that had fallen out of copyright were therefore revived and the copyright in others which were heading for expiry was extended. As a general rule, in deciding whether a work is still in copyright in this country, the first task usually is to find out when the author died and then add 70 years. But different rules apply to the copyright in works created before 1st August 1989 but first published after the author’s death. Where such a work was first published posthumously before 1st August 1989, the copyright will run until the later of 70 years after the death of the author or 50 years after first publication. In practice this means that there will be longer protection where the work was published more than 20 years after the author's death. If, however, the work was first published posthumously after 1st August 1989 the copyright will run until 70 years after the death of the author, or until 31st December 2039 (whichever is the later). This means that if the author died before 1st January 1969, the copyright will run until 2039; and if he died after 1st January 1969 the copyright in such work will expire 70 years after his death. Therefore, although an author might have died before 1937, a work of his which was posthumously published between 1st January 1957 and 1st August 1989 might still be in copyright. Each year that time frame shortens. Establishing who might be the owner of that copyright might not be easy, bearing in mind that one would have to trace the beneficiaries of the copyright from those who originally inherited upon the author’s death. The Regulations provide that where a copyright is revived, the copyright owner will not be entitled to prevent exploitation, but will be entitled to receive a royalty. This is an important distinction from the general provisions of copyright, which give the owner discretion as to whether or not he will allow exploitation of his work. It is important to remember that although an author’s copyrights might have been revived under the Regulations, the copyright in a posthumously published work might still have been in existence on 1st January 1996. If so, it will not constitute a “revived” copyright, and will not be subject to the royalty provisions. Let us take an example. An author died in 1941. Until 1st January 1996, the position was that the copyright in his works published during his lifetime ended on 31st December 1991. From 1st January 1996 the provisions of the Regulations meant that the copyright in those works was revived until 2011. There would therefore have been a hiatus between 1992 and 1995 during which the work was out of copyright. However, if a work by that author had been posthumously published for the first time in say 1964, the copyright in that work will last until 2014. This date is beyond 2011, and the work would not have been out of copyright in the period 1992 – 1995. It would not be a revived copyright. ************************************************************* “No. 1 Bestseller” - Book Advertising Claims Bestseller lists have never been short of controversy, from the furore over the accuracy of the Official Scottish Bestseller list to frequent allegations of manipulation of Amazon’s hourly-updated rankings. Whilst publishers may have believed that consensus in Bestseller lists was finally being achieved by the broad acceptance of Neilsen’s Bookscan data the Advertising Standards Authority (ASA) has now effectively sanctioned a wider playing field. Random House had issued a press advertisement for Sebastian Faulks’ “Human Traces” which described the book as “The No. 1 Bestseller”. A complaint was made to the ASA and this claim was challenged. The ASA considered the complaint in the context of the Committee of Advertising Practice’s code (“the CAP Code”) and investigated whether it was capable of substantiation and therefore whether it complied with the CAP Code obligation that all advertising claims be true. The CAP Code makes it clear that before making a claim advertisers must hold documentary evidence which demonstrates that a claim can be objectively substantiated. CAP guidance on “Bestselling” claims unsurprisingly requires evidence of unit sales in context with comparable products. Both CAP and ASA consider “No. 1” claims to be synonymous with “Bestselling” claims unless the context indicates otherwise. Outside the vanity publishing sector ASA complaints about book publishing are relatively rare and this is the first adjudication to consider whether newspaper charts represent sufficient substantiation for a “Bestselling” claim. There are a number of different charts but increasingly newspapers such as The Times and The Guardian rely on data purchased from Neilsen Bookscan and collated from over 7,500 retailers. This should tend toward a consensus amongst publishers as to which books are “No 1. bestsellers” but things may not now be so clear for consumers. In this case Random House relied on the figures of The Independent newspaper chart published on 15 September 2005. That chart is based not on the Neilsen data but on figures supplied by Waterstones bookshops. Human Traces had been at number one in that chart that week and this satisfied the ASA as sufficient substantiation for the claim. The book did not occupy the same status in the Neilsen-based charts. It is not clear whether ASA was provided with data from Nielsen or whether its increasing status as a definitive source of data was explained by the complainant. In accepting Random House’s substantiation the ASA implicitly recognised that there were a number of Bestseller lists but in this case were satisfied that the particular chart relied upon was widely recognised as being reputable and was based on data from a large, well-known bookseller. For the time being publishers making “Bestseller” advertising claims should be able to do so in confidence if they rely on a newspaper bestseller list compiled from reasonably well recognised sources – even if that list is not based on Nielsen. However, there is clear dissatisfaction with this ruling from many in the publishing industry who do not accept that The Independent’s listing is drawn from sufficiently robust data to justify its use as objective substantiation for an advertising claim. It is quite likely that a similar challenge will be taken up in similar circumstances in the future and publishers seeking to rely on more specialist listings or charts drawn from sources other than Nielsen should consider whether it would be prudent to make their sources plain in the advertisement by means of an asterisked footnote or other clearly visible means. ************************************************************* Blogs: Should You Mediate? An Update The question of whether an online publisher should pre-vet the content of blogs, chat forums or other message boards is one that is periodically re-investigated. Pre-vetting might appear to be a sensible way of filtering out rogue content which either infringes another’s intellectual property or privacy rights or is defamatory. However, our view is that a publisher will put himself in a stronger legal position if he does not pre-vet. Under the laws of defamation, you can be liable for defamatory material if you are an author, editor or publisher. If you avoid pre-vetting then your role is only that of a publisher. As a publisher, you are likely to have a defence to defamation if you have taken reasonable care in relation to the publication of the material in question, and you have no reason to believe that you have contributed to the publication of a defamatory statement. As an editor, you would have to rely on one of the more complex defences relating to the content of the material itself. The issue of liability of hosts of online content is also dealt with under The Electronic Commerce (EC Directive) Regulations 2002. A host will not be liable for damages for a claim in respect of unlawful content posted by site users if he does not know of the unlawful activity taking place on his site. The publisher may only maintain this defence provided that, as soon as he becomes aware of any facts that make it clear that there is unlawful activity, he acts quickly to remove any unlawful posting. Again, this protection is denied a publisher if he exercises a degree of control over the posting of the unlawful information. If you decide not to pre-vet material, then you should follow the following tips: make it clear that on your site that user posted material is not vetted before posting. provide clear contact details for anyone aggrieved by any content that has been posted. monitor the contact address given regularly i.e. at least once per day. upon receipt of a complaint, immediately remove or disable access to any content which it is alleged is unlawful.   ************************************************************* Nicola McCormick and Catherine Fehler http://www.simkins.co.uk/LegalServices/Publishing.aspx << back to articles & bulletins

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