What you should know about data protection and intellectual property

Towards the end of August, Jeremy Corbyn’s train journey between London and Newcastle was the subject of intense scrutiny, which grew after Virgin Trains took the unusual step of releasing CCTV images on social media to try and disprove claims that the train in question was “ram-packed”. Regardless of Virgin Train’s apparent motivation to protect their public image, the legal ramifications of distributing sensitive data such as CCTV footage online can be severe and highlights the problem that many people in the UK are not aware of the laws surrounding data protection and intellectual property.

In releasing the CCTV images online Virgin Trains may have breached their own policy, which requires that CCTV footage is only provided to the media if it is “necessary to seek assistance from the  in connection with a criminal investigation” or where it might improve the “safety of the railway or prevent railway accidents of incidents”.[1] This is echoed in a CCTV code of practice provided by the Information Commissioner’s Office (ICO), which states that placing surveillance information on the internet would be inappropriate in most situations, also including the disclosure of information about identifiable individuals to the media.[2]

The dramatic increase in potential to distribute images across the world at rapid speed has decreased awareness of whether images can be used and shared, Virgin Trains falling foul of the assumption that an image taken by their cameras can be processed as they see fit. In other circumstances such an assumption may not be entirely wrong, however, the presence of a clearly identifiable person and information such as their travel movements subjects the images to projections regarding their processing, which is governed by the data protection act.  The Data Protection Act 1998 provides rules on the processing of data which can identify a person (Personal Data) and information which could be used to discriminate against a person (Sensitive Personal Data) – which includes information as to an individual’s ethnic origins, sexual orientation or political beliefs. Sensitive personal data requires higher standards care in its processing than Personal Data, if you or your company inappropriately release, share or use sensitive personal data about someone without justification the ICO can pursue serious penalties, up to and including criminal charges.

Looking now at intellectual property and its interaction with the internet, the idea that there is an automatic application of the ‘public domain’, allowing the sharing of intellectual property free of responsibility or restriction is problematic and leads many individuals to infringe on the rights of others. Usually misuse online will only become an issue where a person is gaining a financial benefit from exploiting intellectual property and is doing so in a way which compels the rights holder to act in order to maintain defence of their property. This compulsion comes from situations where a person or entity holding the rights to intellectual property fails to act reasonably promptly to defend it against infringement which the holder should have been aware of. Failure to act can be seen as acceptance of the misuse by the ICO or Courts, providing significant incentive to be active in protecting rights even where the misappropriation is seemingly trivial. A simple example of how an infringing situation could occur online is an individual gathering a large following on social media and failing to properly attribute music or imagery while obtaining advertising revenue based on the content of their online posts. Such activity would certainly bring them to the attention of the rights holder, who would likely feel that their work was being exploited for the infringer’s own financial benefit.

When it comes to images, those which display the copyright symbol ‘©’, creator’s name and year of creation do not receive any more protection than those which display none of the above identifiers. Any of the marks can be used independently, which shows how easy it can be to mistakenly use photos or diagrams which bear no obvious marks to show that they are protected. Images are generally regarded as artistic work and their copyright endures for 70 years before being freely available to use by the general public. Considering the date of creation for images you use, whether in a personal or commercial capacity, could help avoid conflict with rights holders. In addition, some creators freely provide their work for use so long as it is properly credited, making it important to know the origin of material you use so that it can be attributed correctly.

Commercially, online monitoring is rapidly growing as a check against infringement of intellectual property rights, it being crucial to be aware of where material you post or use originates from, especially when planning distribution of material to a large audience. Regular online checks of competitors is equally important when looking to protect your own images, designs or artistic work, as investment in a brand image or logo can be lost quickly if a competitor is able to substantially imitate them, even if only for a short period.

Intellectual Property is a complex area of law, and if you are concerned about protecting your works or would like advice regarding avoiding infringement of the rights of others, please contact a member of our experienced Commercial Law Team at Mackrell Turner Garrett.

[1] https://www.theguardian.com/uk-news/2016/aug/28/virgin-broke-rules-releasing-corbyn-cctv-document

[2] Paragraph 5.2.2, In the picture: A data protection code of practice for surveillance cameras and personal information, Information Commissioner’s Office