‘Video sharing web sites, in particular YouTube, contain a lot of illegally copied materials. What are the legal issues if this material is then in advertently used by a company (ie on the blog of an employee)?’
ANSWER
The answer is straightforward. If the person who copies the material does not have the agreement of the copyright owner to do this then it is copyright infringement.
However, when it comes to the responsibility of the employer for this, it is a little more complicated. Whether the employer is responsible depends upon concepts of vicarious liability. In simple terms, if the employee creating the blog is acting in the course of their employment then the employer will be vicariously liable.
If the employee is using the employer's assets (communication systems) to set up a personal blog, then the position is less clear. At one end of the spectrum it could be argued that the employer is allowing its facilities to be used much like a telephone system and the employer would not be responsible if, for example, the employee in a personal telephone call said something defamatory about someone else.
Questions about authorising infringement have been looked at in the context of companies selling peer-to-peer software in the United States and Australia (in the Grokster and Kazaa litigation, respectively), which was subsequently used by individuals to infringe third-party copyright. Those decisions have gone in favour of the copyright holders. But this was on the basis that there was evidence that the software suppliers were actively encouraging infringement and sharing in the profits generated.
Ian De Freitas, Partner, Intellectual Property, Berwin Leighton Paisner LLP. Ian.defreitas@blplaw.com