Latest Blog posts from BusinessLawfirm.co.uk

Photographs Copyright and the red London bus

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The iconic red London bus has found itself at the centre of a dispute over copyright.

Earlier this month Judge Birss QC handed down his judgement in the Patents County Court case of Temple Island Collections Limited v New English Teas Limited and Nicholas Houghton.

It is an interesting case because it did not involve publishing a photograph taken by the claimant, but creating a similar photograph taken from the roughly the same viewpoint and using a black and white image of the Houses of Paliament with a red bus on Westminster Bridge in the foreground. Many would think that this was not a breach of copyright, but not the judge!

Judge Birss mentioned that there were 3 aspects for originality in photography, (1) specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techiniques (and presumably image editing?), (2) the creation of the scene to be photographed, and (3) being in the right place at the right time.

The relevant sections of the Copyright Designs and Patents Act 1988 (16 and 17) state that copyright is infringed by reproducing the whole or substantial part of a work in a material form. The judge found that the claimant's work was original in terms of its composition and visual contrasts. Perhaps the biggest factor in the decision was that the Defendant Mr Houghton had seen the Clamant's image before he re-created it, so he was without doubt influenced by it and followed the original very closely.

There were differences between the photographs, but they were considered immaterial by the judge. He accepted what the Claimant argued, "What the defendants cannot have is a southbound Routemaster on Westminster Bridge before the Houses of Parliament at the same angle as the claimant's work on a greyscale background and a white sky, in circumstances where they admitted seeing the claimant's work".

So in future those photographers out there who enjoy re-creating the works of other photographers need to tread very carefully if they are not to end up on the wrong end of a breach of copyright action.

Nigel Musgrove
Business and Litigation Solicitor

Tel: 0845 003 5639

Optimism – is it a good or bad thing?

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When speaking to our clients recently, it is apparent that most have started the year with a sense of cautious optimism.

It’s easy to understand the source of the caution: the economy remains in a mess for the 5th year running, with negative growth back, unemployment continuing to rise and the largest ever national debt. Although there has been much talk of the government reducing red tape, little has been achieved so far and we are still affected by a seemingly endless stream of new regulations from Europe, the cookie regulations being just the latest. And there are menacing storm clouds on the horizon: the collapse of the Euro seems likely within the next couple of years and there is even the distant possibility of a war with Iran, which would cause fuel costs to rocket.

But where does the optimism come from? I believe it’s an inherent trait of business owners. After all, business is all about doing things now with a view to making a profit in the future. Without optimism, business owners simply wouldn’t take the risks necessary to continue in business.

I remember an interview with Theo Paphitis of the Dragons' Den a few years back when it was suggested to him that being in business is all about taking risks. No, he said, it was about taking calculated risks. Nothing was certain and it was foolish to take risks without doing your homework first.

As a litigation solicitor, I am regularly called to help pick up the pieces when things go wrong. Often the business owner comes to me facing disaster: the collapse of their business, the loss of their life savings, or the prospect of bankruptcy and losing their home. The toll this has on their health and family is immense.

What I see time and time again is that they took massive risks without any real appreciation of the dangers they were facing. If only they’d taken the right legal advice at the right stage, the risks could have been avoided or reduced.

As examples, many formed companies with business associates without proper shareholders’ agreements in place, only to find that there was little they could do when they fell out with their fellow shareholders/directors. Others entered into major contracts on the basis of just few phone calls and perhaps a basic written order, only to find that, without a proper contract, they were liable when things went wrong. Many thought they could sort out a business dispute with a major customer or supplier without taking legal advice on their position and what tactics to employ, only to find themselves embroiled in a lengthy and expensive court case. And still others thought they could enter into a long-term lease commitment without taking advice on its terms, only to find when too late that it was heavily biased in their landlord’s favour – something which is totally unnecessary in today’s market conditions.

So, whilst an inherent sense of optimism is vital for any business owner, especially when the economic outlook is so bleak, blind optimism, optimism that is not based on understanding and calculating risks, is simply foolish. When it comes down to it, the main thing that we do as lawyers is to help businesses minimise or avoid unnecessary risks and we’re only a phone call or an email away.

Gary Cousins
Business Solicitor and Optimist
0845 003 5639

Problems Raising Business Finance? Is Live/Work the Solution?

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The current difficulties small businesses are having raising finance are well known. One idea that hasn't been discussed so far in the media is one possible solution - the live/work unit.

A live/work unit is a property that combines living space and business space under one roof. The crucial issue for small businesses, though, is that the cost of buying and running live/work units is much lower than the combined cost of buying and running a home and separate business premises.

Business owners currently needing to raise capital may like to consider whether selling their house; disposing of their business premises; and buying a live/work unit is the solution they are looking for.

The main issue is actually sourcing such units as they are few and far between.

Insight Park is a new development of 9 live work units near Southam in Warwickshire. As you can see from the CGI representations on the website, living in a live/work unit doesn't have to feel like living in a business park as these units have the feel of a cluster of barn conversions.

In the current economic climate the opportunity to base home and work in the same location is certainly an attractive one.

Steven Petty, Commercial Property Solicitor

What you need to do to comply with the cookies regulations

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If your website uses cookies or similar technology you need to comply with the new cookies rules introduced last year by 26th May 2012. This means that you need to tell users what cookies your site uses, explain what those cookies do and, unless certain very narrow exceptions apply (read Can you rely on exceptions to the cookie regs? ), obtain consent for any that are stored on the users’ computer, mobile phone or other web-enabled device. Previous blogs have dealt with the rules and guidance issued by the ICO including the exemptions – see the links below if you would like to look at that information.

The ICO updated its guidance on the new rules and now includes more detail and suggestions as to how to comply. It also stresses that the previous law about supplying information to users about the cookies you use still applies in addition to the new requirements, although notes that it has not always been complied with by website owners.

The first steps recommended by the ICO are to:

Check what type of cookies and similar technologies you use and how you use them.
Assess how intrusive your use of cookies is.
Where you need consent - decide what solution to obtain consent will be best in your interest.

The ICO goes on to suggest carrying out a cookies audit to cover the following points:

Identify which cookies are operating on or through your website
Confirm the purpose(s) of each of these cookies
Confirm whether you link cookies to other information held about users - such as usernames
Identify what data each cookie holds
Confirm the type of cookie – session or persistent?
If it is a persistent cookie how long is its lifespan?
Is it a first or third party cookie? If it is a third party cookie, who is setting it?
Double check that your privacy policy provides accurate and clear information about each cookie

The ICI guidance contains details of the different types of cookies and what they mean by first and third party cookies. If your site contains a link to another, the ICO takes the view that this does not mean that you have no role to play if that third party sets cookies when accessed via your site, but offers advice as to how this might be dealt with.

It is not a prudent option to do nothing before the twelve month grace period comes to an end on 26th May 2012. After that time, the ICO has made it clear that if they investigate your site and it is found not to be in compliance with the regulations, you should be able to demonstrate what steps you have taken to try and comply, what you propose to do to achieve compliance and your timescale for so doing. Any website owner who has done nothing will not get much sympathy – the ICO’s December 2011 report ended with the message that in such circumstances they might reasonably ask “if others can do it, why can’t you?”, so please contact me if you would like any assistance.

Sue Mann
Commercial Solicitor, Birmingham

Tel: 0121 246 4437

Previous blogs on this topic which you may wish to look at are:

New rules on the use of cookies

Time to comply with the new rules on the use of cookies

Website owners are warned by Information Commissioner about lack of progress in compliance

New guidance from the ICO about the cookies regulations

Can you rely on exceptions to the cookie regulations?

Shortage of Serviced Offices in London

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Jones Lang LaSalle reports there is likely to be a shortage of serviced office accommodation in London this year with the result that rents in that sector are likely to rise.

One solution if you need more meeting or conference space is to take advantage of the service offered by Hubworking Limited which supplies pay as you go meeting and conference facilities in Central London.

Steven Petty, Commercial Property Solicitor

Government to Squeeze Out Private Commercial Landlords

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As if times weren't hard enough for commercial real estate investors, David Cameron has announced that the Government is to make available unwanted Government offices at 'low rates' to businesses.

Already faced with paying business rates on offices they are unable to let out, landlords will now find that market rents are likely to fall further in the face of the Government's incentive.

Steve Petty, Commercial Property Solicitor

All change in Health and Safety Law – about time!

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The Government has announced plans to begin a major cut back of health and safety red tape. It will begin an immediate consultation on the abolition of large numbers of health and safety regulations and intends to have removed the first rules from the statute book within a few months.

It seems David Cameron has finally realised how crippling the raft of health and safety legislation can be for the average business. He’s recognised that health and safety legislation has become an "albatross around the neck of British businesses", costing billions of pounds a year and leaving entrepreneurs in fear of speculative claims.

Speaking to a small business audience recently Mr. Cameron also disclosed that he had asked the Health and Safety Executive to bring forward to the end of 2012 its timetable for abolishing or consolidating up to half of all existing regulations. About time too!

It will still be important for employers to act responsibly and to manage risk when it comes to the safety of their workforce and customers, but it does sound like a sensible move by the Government which should make it easier for small businesses and entrepreneurs to focus on running their business and making money rather than worrying about the latest H&S rules they need to comply with.

Gary Cousins
Business solicitor, Birmingham

Can you rely on exceptions to the cookie regulations?

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The new regulations relating to cookies which came into force last year basically requires website owners not only to provide information about cookies they use and a mechanism to opt out, but to obtain consent from users of the site before a cookie is used. The only circumstances where this does not apply are very limited.

The only exception to the requirement to provide information and obtain consent is where the use of the cookie is:

for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
where such storage or access is strictly necessary for the provision of an information service requested by the subscriber or user.

Website owners are most likely to look at the second part of the above exception in the hope of avoiding the need to obtain consent from users of their site, but if they do so they must be satisfied that it applies as the ICO have made it clear that their view is that the exemption is to be interpreted narrowly.

The application of the second part of the exemption hinges around what is meant by “strictly necessary”. The ICO considers that “strictly necessary” means that the cookie or similar technology must be essential to provide the service requested by the user. It is not sufficient for it to be reasonably necessary to provide the service requested by the user or essential to some other use the website owner wishes to put the information.

The types of cookie likely to fall within the “strictly necessary” exemption are those used by online shopping sites to ensure that when a user selects an item or proceeds to checkout, the site registers the chosen item, so no consent for such cookies are needed. Two more examples are given in the ICO guidance of cookies likely to be “strictly necessary”:

cookies essential to comply with data protection security requirements for an activity requested by the user, such as when using online banking
cookies essential to ensure that page content loads quickly and effectively by distributing the workload across several computers

The second example above must be carefully considered as against other uses of cookies, such as cookies to recognise a user returning to the site to give them a personalised greeting , cookies to analyse the number of unique visits to a site and so on which would not fall within the exemption, so would need consent.

The ICO guidance refers to discussion in Europe – which is where the new rules originated – that cookies used for matters such as resource planning, capacity planning and operation of the website could come within the exemption, but the ICO does not accept that argument and makes it clear that they will continue to take a narrow view of the exemption. If you propose to rely on the exemption, please check the ICO guidance and consider carefully whether you can properly use cookies without obtaining user consent.

There are links below to other blogs on this topic and if you would like any help please contact me.

Sue Mann
Commercial Solicitor, Birmingham

Tel: 0121 246 4437

New guidance from the ICO about the cookies regulations

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In my last blog (Website owners are warned by Information Commissioner) I mentioned that the ICO had issued updated guidance on compliance with the new cookies regulations introduced last year. This new version of the guidance is much more detailed than the original version and, along with the report from the Information Commissioner which I talked about previously, also warns that, if your website uses cookies or similar technology for storing information, you should not simply ignore the regulations as they are here to stay.

The updated guidance is more comprehensive as it brings much relevant information together in one document after the rather piecemeal publications at the time the regulations came out. It includes a summary of the relevant law and terminology used before going into more detail as to what website owners should do now and in the longer term to work towards compliance if they have not already done so.

The basic message is that website owners need to tell visitors what cookies their site uses, explain what those cookies do and obtain consent for any that are stored on the visitors’ computer, mobile phone or other web-enabled device. This message is emphasised throughout by key points which are repeated a number of times along the lines of the need to provide clear and comprehensive information and mechanisms for making choices, all of which should be as readily available and easily accessible as possible. Any website owner who decides to rely on the exceptions to the requirement to obtain consent should check carefully the advice on the exceptions as the ICO’s view is that these are limited and will be interpreted narrowly.

What is welcome, in view of the clear indication that the regulations are here to stay and that they will be enforced, is the considerably expanded section containing practical advice on how to comply for those requiring it. Some of the suggestions may be less welcome and will no doubt be viewed by some as impractical or entailing effort and cost that they would prefer not to incur, but website owners whose sites use cookies will have to take some action. The original guidance seemed to give some hope that technical improvements to browser settings might provide a means for many websites to demonstrate that visitors had set their preferences as regards the use of cookies. The updated version now says that, whilst the government is still working with the major browser providers, there is no solution yet available and, even when such solution is available, it will take time for it to be used, so in the meantime websites should use other means of complying.

The details of the ICO’s enforcement powers and possible penalties for failure to comply were issued a short while after the original regulations and after the twelve month lead in period was announced, so may have gone largely unnoticed at the time. The enforcement powers and penalties are now included in the new version of the guidance so cannot be overlooked. What is useful is the indication of the practical and proportionate approach that will be applied to enforcement with the more formal action and higher monetary penalties likely to be reserved for what are viewed as the most serious breaches as prioritised by the ICO.

The clock is running – the twelve month period allowed by the ICO to comply before they start enforcing the new law runs out on 26th May 2012. If your website uses cookies I would strongly recommend that you start preparing now. The ICO’s new guidance is a good source of reference and contact me if you would like any assistance.

Sue Mann
Commercial Solicitor, Birmingham

Tel: 0121 246 4437

Website owners are warned by Information Commissioner about lack of progress in compliance

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Whilst most of us were preparing for the Christmas and New Year festivities, the Information Commissioner issued his half term report about the preparations for complying with the cookie regulations which came into force last year. Details of those new regulations were given in my blogs at the time - there are links to them below if you’d like a recap. Basically, if your website uses cookies you now not only need to give details, but you also need consent from visitors to the site for most cookies as well as a means of opting out.

In keeping with the chiding tone of the report, the Information Commissioner himself says that the report can be summed up by the schoolteacher’s favourite clichés: “could do better” and “must try harder”. It seems that at present he doesn’t think that there are many ‘star pupils’ who are getting it right with their websites. He accepts that compliance is not easy to achieve, but what seems to concern him more is that too many website owners still appear not to be doing anything at all.

There is also a defensive element to the report resulting no doubt in part from criticism levelled at the perceived inadequacy of some of the advice given in the original guidance. The Commissioner points out for example that it is compliance with the law itself, not the ICO’s advice, which presented the biggest challenge - presumably a subtle reference to the fact that the regulations were introduced to comply with an EU Directive, rather than originating in the UK.

The Commissioner issued his report at the same time as the ICO published an updated version of its guidance on compliance with the regulations. That guidance has now tripled in size. The Commissioner indicates that the ICO has tried to answer many of the questions that have been asked over the last six months and that the main revisions relate to the following areas: what is “strictly necessary”, analytics cookies, the ICO’s regulatory priorities, examples of what works, details of what a cookie audit looks like.

If, like many other website owners, you might have not yet taken any steps towards achieving compliance, I will share with you another schoolteacher-type statement from the Commissioner’s report by way of indication as to the approach likely to be taken by the ICO: “...be assured that if we get complaints or have concerns then we will be checking your site and we will take the necessary steps to ensure that you do work towards compliance.”

I would recommend that you heed the Information Commissioner's warning and start preparing now if your website does not yet comply with the regulations. I will follow up shortly with more details from the ICO’s updated guidance. In the meantime, if you would like any further information please contact me.

Sue Mann
0121 246 4437

Previous blogs on this topic which you may wish to look at are:

New rules on the use of cookies
Time to comply with the new rules on the use of cookies