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?