I am asked to provide a note of advice to my client, Belbin Associates. This advice takes the form of the legal analysis of a series of propositions that third parties who are exploiting the Belbin SPI without permission habitually rely upon.
1. “As an educational institution, we are permitted to copy the SPI as it constitutes less than 5% of the contents of the Book.”
The Copyright, Designs and Patents Act 1988 provides a defence to copyright infringement for certain educational purposes. The first requirement for that defence is that the institution be either a school (an educational institution which is outside the further or higher education sectors and which provides primary or secondary education or both) or an establishment specified for the purposes of the educational use infringement exceptions.
Section 36 of the 1988 Act then allows the copying of extracts of a work in certain circumstances. The provision does indeed have a limit of 5%, but this applies to a work, and not to a book. It is subject to the qualification that “a work which incorporates another work is to be treated as a single work”. Thus an initial question arises as to whether the SPI is a work incorporated in another work. In my opinion, this provision is intended to cover diagrams in books, or poems included within novels. It is not intended to cover all works that might be gathered together in a published edition. By way of example, a collection of poems would not involve the incorporation of those poems within a single, compendious literary work for these purposes, such that individual poems might then comprise less than 5% of that collection. It is therefore very arguable that the SPI is to be considered as a work in its entirety, and not as part of the larger “Management Teams” book. Furthermore, that argument will be stronger in respect of later editions of the SPI which have not been published within the book.
In any event, however, section 36(6) states as follows:
“Acts which would otherwise be permitted by this section are not permitted if, or to the extent that, licences are available authorising the acts in question and the educational establishment responsible for those acts knew or ought to have been aware of that fact.”
Belbin Associates runs a licensing scheme which involves accredited establishments who purchase SPI reports for student use. Such students will, of course, be licensees under the copyright in the SPI. I have no doubt that the wide availability and take up for the Belbin accreditation means that this scheme is one that establishments ought to have been aware of. It follows that the educational defence of section 36 will not be available in these circumstances.
2. “The SPI is in the public domain therefore anyone can use it.”
The SPI qualifies for copyright protection as an original literary work. The term of protection will expire 70 years after the end of the calendar year of the death of Dr Meredith Belbin. As the law presently stands (and there are no plans to change it in this respect), it is only at that time – that is to say some time after 2088 – that the SPI will enter the ‘public domain’ and be susceptible to legitimate free reproduction.
3. “We have changed some of the questions and Team Roles so this is not an exact copy of the SPI.”
It will be an infringement of the copyright in the SPI to reproduce a substantial part of the original work. In accordance with the Court of Justice decision in Infopaq International A/S v Danske Dagblades Forening (C-5/08) EU:C:2009:465, that conclusion will follow in respect of any work which reproduces elements which are the expression of the intellectual creation of Dr Meredith. In relation to the SPI, very extensive changes would in my opinion be necessary to escape infringement. Indeed, it is not easy to see how an altered copy of the SPI could retain its usefulness without remaining an infringement.
4. “We do not use any materials belonging to Belbin, we just publicise Belbin’s work on our website to get people interested in it.”
The name ‘Belbin’ is covered by a registered trade mark owned by Belbin Associates, registered for, amongst other goods and services, educational services relating to the field of team management. It will be an infringement of the rights in that registered trade mark for the name to be used so as to indicate a trading connection between a third party and Belbin Associates in relation to such educational services (or similar services). In this respect, I note that Belbin Associates runs an extensive licensing operation under which third parties, and in particular educational and training establishments, are permitted legitimately to use the name Belbin to indicate their status as accredited organisations. In these circumstances, it highly likely that the use of the Belbin name without a licence will be an act of infringement.
5. “We do not use the Belbin test. We have created our own test and just state that one can obtain Belbin’s Team Roles from this test.”
See 4. above. The name Belbin is being used to indicate a connection with Belbin, when there is no such link. That connection is being alluded to in the course of trade, and in relation to services for which Belbin Associates owns a registered trade mark. It is an infringement of the rights conferred by that trade mark.
6. “I have previously used a hard copy version of the SPI on an educational course. I refer third parties to Belbin if they would like to do the full version of the SPI but I give them a ‘taster’. It is not being used for commercial purposes.”
Section 28B of the Copyright, Designs and Patents Act 1988 as amended provides a defence to infringement for private use. That defence only extends to reproduction which is both (i) for an individual’s private use and (ii) is made for ends which are neither directly nor indirectly commercial. The use of portions of the SPI in an educational environment would not comprise use for an individual’s private use. It would also be at least indirectly commercial. Accordingly, there is no prospect of such use being covered by this defence.
7. “My copy of the SPI states that it is “Reproduced with kind permission of Meredith Belbin” so we always use it”.
This wording refers to the licensing arrangement between Belbin Associates, who represent Meredith Belbin, and the printer of the SPI. It is not a licence to further reproduce that printed work.
8. “We may have copied the SPI and/or part of the Book but we have removed references to the ‘Belbin’ mark so this is permitted.”
The reproduction of parts of the SPI will be an infringement of copyright. Although the removal of references to Belbin will avoid infringement of the Belbin Associates’ trade mark, it will not diminish or restrict any liability for copyright infringement. On the contrary, it may comprise a non-attribution of authorship and therefore an infringement of the moral rights of Dr Belbin in addition to copyright infringement.
Hugo Cuddigan QC
(SPI: Self-Perception Inventory)
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