How risky is it to make use of other people's copyright works without permission? If you are an anonymous online file-sharer, the risk is probably quite low in practice. But if you are an architect who uses (say) Ordnance Survey data for client work without an appropriate licence, the risk could be very significantly higher...especially as your PI insurance might not cover it!
It is settled law in this country that artistic and literary copyright can exist in maps, and that the reproduction of all or a substantial part of a map without permission can therefore give rise to liability for infringement of the copyright subsisting in it. For example, in the relatively recent case of HMSO and Ordnance Survey v Green Amps Limited, the defendant – which had downloaded Ordnance Survey digital maps in which Crown copyright subsisted without payment and without permission – was found liable for copyright infringement both by the High Court and (on appeal) by the Court of Appeal, despite the ingenious defences that it attempted to raise.
But what is often overlooked is that liability of this sort might not be satisfactorily covered by one's professional indemnity insurance cover. Firstly, it is by no means the case that all PI insurance policies cover liability for infringement of copyright and other intellectual property rights. And secondly, even if copyright infringement is covered by one's policy, the cover might only extend to unintentional or accidental infringements.
So if, for example, an architect knew (or, taking his experience into account, should have known) that the Ordnance Survey mapping data used by him for his client work was unlicensed, he may well find that his PI policy does not cover it: insurers, as we all know, are adept at avoiding liability under their contracts, and in a case of this kind they might be able successfully to argue that the use in question was not 'unintentional or accidental'. And the architect's woes could be compounded if (for example) he knew or should have known that the unlicensed OS data exploited for his client work was out-of-date, for then he could be fighting on three fronts at the same time: defending a suit for infringement of Crown copyright, defending an negligence action from his client, and trying in vain to get his insurers to cover his liabilities!
It is hard enough these days for professionals to make a living without having the additional headaches of battling with angry clients, difficult insurers and outraged copyright owners. Consent always negates infringement, so putting in place an appropriate licence for one's professional reproduction of copyright works is not just a prudent step – it is a very necessary one. Insurers would, doubtless, wholeheartedly agree!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
