Commercial Training Provider Fined & sent to Jail – A cautionary tale
Reported in the Times last week at the Central Criminal Court in London, the Right Honourable Lord Wilkinson set the sentence between George (Director Ultimate Training Associates Limited (UTA)) vs Regina to 10 years for copyright infringement.
Throughout the case, George proclaimed their innocence by saying that “the material was only used for education purposes, and not sold”.
Evidence given throughout the case demonstrated that the defendant had used a significant number of sources of materials for training purposes. Outlines given to the court included the following materials:
- Training content taken from a website
- Icebreakers & activities taken from Fenman Training publications
- The Honey & Mumford learning styles questionnaire (LSQ)
- The Belbin team roles inventory
- The Situational Leadership inventory
- Learning material bought by their former employer
- Various CIPD toolkits
It seemed the company did much of what other training firms have done:
Start the day off with topical music, Run various proven activities, used profiling instruments, shown clips from TV, YouTube or from commercially available films.
The Evidence was overwhelming
Many of the witnesses in the case, besides various participants from UTA’s training courses included TV producers, lawyers from training related publishing houses (including Fenman & the CIPD) and the representatives of the various instruments (tests & questionnaires) used, the Performing Rights Society (PRS) and several other parties that it appears UTA’s company used materials from without the relevant permission, or licensed products.
Evidence from the legal representatives of Dr Peter Honey, Dr Meredith Belbin, Dr Paul Hersey and others, showed not only was the material available, but the cost was not prohibitive. Legal teams from the music profession also clearly showed that there were structures in place to make music available for such usage, and yet the defendant had not taken any steps to recognise the rights of writers and performers of music. Not having the appropriate licenses also put the contracting organizations at risk of prosecution for allowing the performance of music on their premises.
The case lasted just 3 days and the jury preceded in less than one hour. In setting sentence, not only did the Judge send the defendant to prison for the maximum available tariff, but compensation running into £100,000+ has been awarded from ceased assets. The Judge said that this was such a serious case that the police should look into the associates of the company to see if they had been using the materials with other organizations. If so then they too should be charged.
In a press release from the Federation Against Copyright Theft FACT a representative was quoted as saying :
“It’s about time that the courts supported our members and recognised that not just all materials can be used for “educational” purposes without both recognising the source and using legitimate, licensed materials”
The judge also added to the press present that he hoped that this would serve as a message to other training providers, universities, schools etc that the copyright act was there to protect the creators of works and that no one had the right to use materials without permission, with or without license fees payable.
The truth the whole truth and nothing but the truth
Now this could be true, but it is only a piece of fiction.
Many training organisations, schools, HR teams and others use copyright material “because they can” and often ignore the impact on their employers of the potential penalties. Even my own daughters’ secondary school recently used a copyright model in a planner issued to all pupils without attributing the model to its creator, let alone using it under license. When I contacted the school concerned about the copyright and the message it gives to pupils about referencing and plagiarism, the reaction from the teacher (and senior school manager) was “it’s ok, it’s for education and if it helps people to learn, schools can do this sort of thing!” – well, how wrong is he!
Some years ago I joined a manufacturing firm just after an out of court settlement with a well-known training video producer, the company had been caught copying the video and using it internally. All I know was that we could not buy ANY training materials from any major player for almost 5 years and the company paid a large out of court settlement. It was only 2-3 copies – not 1000’s!
Only this week I was “interviewing” a trainer for delivery of a course and they did not know they could not use music, or certain “instruments or questionnaires” as they were subject to copyright. Their belief was why pay £20 each when I have typed up my own! I suspect the copyright owner would not take the same view.
Time for change
As professionals, we need to recognise the copyright and intellectual property of others. If a client wants to use xxxxx model or theory, then we need to pay for that… if the client cannot afford it then they cannot have it. Using materials without permission puts both ourselves at risk, as well as our clients.
If we want to use music, then we need to buy royalty free music or make sure that either the venue or we have a PRS & PPL license.
ADDENDUM – what does this mean
There has been some criticism on social media sites that this piece is misleading, and does not help practitioners.
So let’s look a little more at the law.
In the case between Baigent and another v. Random House Group Ltd  EWCA Civ 247 Regarding a copyright claim on the Da Vinci Code, the court had to view the facts regarding as to whether the copyright was breeched or not. In order for copyright infringement to occur, the material appearing in the later work must form a “substantial part” of the earlier work. To understand what will be regarded as a “substantial part” of the work, we must look at earlier case law.
The Definition of a Substantial Part of a Work
In Designers’ Guild Ltd v. Russell Williams (Textiles) Ltd , the House of Lords considered the question of what constitutes a “substantial part” of a copyrighted work. Here Lord Hoffmann ruled that a “substantial part” can be a wide-ranging concept, stating: “can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part”.
To quote Lord Hoffmann again: “it is an idea expressed in the copyright work” that defines what is, and is not, a “substantial part”. The key word here is not the idea but its expression. Star Wars has a similar plot to many other works throughout history, but how it expresses that plot is what makes its copyright enforceable.
So in practical terms:
If you use a model or outline a theory – Maslow, Hertzburg, De Bono, etc you should reference the author. Sometimes even single models like Situational Leadership from Blanchard/ Hersey require you to purchase a printed copy of the model for each student in order to use it, and not reproduce it or a version of it in the training notes or powerpoint slides.
If you want to use a “full piece of work” such as the Honey & Mumford LSQ, The Belbin Team Profile etc, you need to buy the product (for each learner) from the copyright/ license owner, and NOT use photocopied or self-reproduced versions.
For other models, you may need to attend licensed training in order to use such materials.
What you cannot do is read & copy from a book or magazine (on or offline) and assume that the work is in the public domain – it is almost certainly not!
Copyright Myths -If I change someone else’s work I can claim it as my own. The act of copying or adapting someone else’s work is a breach of copyright. Also, any adaptation will be legally regarded as a derived work; so if you simply adapt the work of others, it will still be their work, and they have every right to object, (and are also entitled to any money you make from their work).
Educational Use – Duplicating, photocopying or manufacturing multiple copies of copyright works for educational use by a school, college or university usually requires permission and, at least, a licence from The Copyright Licensing Agency and including acknowledgements to sources and/or authors is still usually a requirement.
So what can you do?
The site Copyrighttoolkit claims that we can:
Less than 400 words of continuous text from a book.
Less than 800 words of discontinuous text from a book, providing no part is more than 300 words (remember this is qualitative as well as quantitative – so quoting one line giving away the murderer from a whodunnit book would very likely be viewed as copying a substantial part of the work)(but not models which would be classed as “whole works”)
‘non-commercial research’ and ‘private study’ are generally taken to restrict copying to a single copy. – not one per person!
Even the copyright statement on the famous Alan Chapman site BusinessBalls says:
“When using these materials (especially for commercial training purposes) you must decide if your usage is ‘fair use’ within your local law relating to copyright. The free provision of these materials on this website does not imply that the works can be exploited for profit without seeking permission from respective owners of original concepts, theories and other intellectual property. If in doubt about your usage seek qualified advice and/or permission from the owner of the IP concerned. See www.businessballs.com/aboutus.htm for more details about usage.”
** Please note this information is given in good faith and RapidBI or the author cannot be held liable for any acts or omissions resulting from information provided. If you unsure of your right to use material contact a lawyer and/ or the owner of the works.
March 2018 – updated broken links