As an author, I am rather keen on the concept of copyright – the noun first being used in, we are told, 1729 to mean “the exclusive right to make and sell copies of an intellectual production”. But I will admit that I had never thought about it in the context of due diligence – until, that is, a Guernsey client contacted me with this intriguing question: “We have been advised by one of our managers that to continue to print/save articles published about clients for AML/risk assessment purposes we should be paying for a NLA Media Access International Media Monitoring Agencies Licence as if we do not we would be falling foul of the Copyright, Designs and Patents Act 1998. I disagree with them as we are not republishing the articles: we are using them for research, to verify information provided by clients or to monitor for AML/CFT purposes. Which side of the fence do you think is the correct one?”
Now this is an interesting little legal conundrum *rubs hands with glee*. To be honest I had never heard of that licence, so I had a look and I think what the NLA website is saying is that such a licence is intended for “UK and International media monitoring agencies which supply content in paper and digital format to clients”. Now this is obviously not what my Guernsey client is seeking to do – they are simply performing the AML and risk assessment checks on their clients that the law requires of them. But is there a copyright concern anyway, which could be addressed by the acquisition of a different licence/permission? So off I toddled to the Copyright, Designs and Patents Act 1998. Scanning it I came across section 29(A), which says this: “The making of a copy of a work by a person who has lawful access to the work does not infringe copyright in the work provided that—(a) the copy is made in order that a person who has lawful access to the work may carry out a computational analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose, and (b) the copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).” (B) is easy to achieve: you simply make sure that the author and source publication and/or URL are visible on the document. But what about (a)? Does AML checking and risk assessment count as “computational analysis” – or is that something more numerical (rather than the subjective view that AML checks tend to take)? And am I looking at the right bit of the Act anyway?
Not much further forward, I sent my query to a greater power – a QC friend of mine who is Big in Financial Crime. And he said this: “I should have thought there is a distinction to be drawn: collecting articles about clients is one thing, whereas using AML articles for commercial purposes to train clients is another.” Indeed: but that was never the intention of my Guernsey client. They are simply doing CDD checks and putting evidence on their files to show the source of their information.
So now I put it to the collective wisdom and experience of you, my lovely readers. Have you ever worried that filling your client files with information found in publications is a potential infringement of copyright? And if so, what have you done about it?
I understand about 5% of this discussion. I’m so glad you’re there to figure it all out.
Hello – welcome to the blog. And you will note that I carefully put the tricky question out to the readers – I understand about 20% of it! Best wishes from Susan
Susan, I would take the Proceeds of Crime approach that we are required by the Proceeds of Crime legislation (primary & secondary) to know and understand our clients and be aware of their activities and not to do so is a failure with possibly criminal implications and as such the Proceeds of Crime, as I understand it trumps, virtually all other laws where there is any conflict between such laws.
That was my thought process, CDWOS – I’ve always taken the position that “AML trumps everything”. Even if it doesn’t for copyright, I suspect it’s the same balancing act as with data protection: if you breach DP legislation by, for instance, not showing a client your SAR about them, you might be fined, whereas if you tip off by showing a client your SAR about them, you’re off to chokey.
Absolutely correct, in relation to DP I’m sure I remember our Jersey DP legislation being amended to ensure that you could not breach DP by/whilst complying with your AML/CFT obligations. Completely agree with you about SARs.
Interesting – the issue had never occurred to me. The EU directive on which your UK clause is based allows an exception “for reproductions and extractions of lawfully accessible works and other subject matter for the purposes of text and data mining”, so I don’t think your purpose is the “computational analysis” the UK act envisages. But even if your analysis did count as computational, what about the limitation to “the sole purpose of research for a non-commercial purpose”?
cartebien, Whilst we have chosen to follow the EU in many respects vis-à-vis AML/CFT practices and legislation we are, in the Channel Islands, not bound by their rules and regulations as we are not EU members but your suggestion “the sole purpose of research for a non-commercial purpose” would to my way of thinking work, if needed.
Oh yes, I’d forgotten that Susan mentioned Guernsey. In that case you don’t have the UK’s obscure clause on computation, and you can spend a rainy afternoon reading the Copyright (Bailiwick of Guernsey) Ordinance 2005 instead. I suspect most people would say “it’s covered by ‘fair dealing’, isn’t it?” and not worry. (However I wouldn’t like to risk using a bootleg copy of the World-Check sanctions list database 🙂 )
Is the information in the public domain and did the author/publisher put it there. Together with other things said, I would come down on the ok to use for CDD supporting information, unless a right to be forgotten is in place and has been breached by the search engine that provided it. An interesting article and I look forward to reading other’s thoughts.
Welcome to the blog, Chris, and those are interesting questions. I had the impression that the client was doing the usual googling rather than anything more investigative, so I am assuming yes, in the public domain. And useful to be reminded (no pun intended) of the right to be forgotten, so thank you for that too. Best wishes from Susan
I did mention Guernsey, cartebien, because that was the source of the original enquiry, but the company in question also has a UK presence, and indeed I was interested in the principle of the thing rather than any specific jurisdiction. So your comment about the EU directive is very helpful, as it shows a direction of travel for at least 27 (sob!) countries.