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Emails can infringe copyright, ruling

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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."

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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