Copyright

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Copyright /ˈkɒpɪrʌɪt/ (n.)
see also: Information

On the distinction between copyright and confidence

The key thing is to distinguish between breach of copyright and breach of confidence. The former is an intellectual property right over the form of information; the latter a contractual right over the substance of information.

  • Breach of copyright: Copyright subsists in the particular articulation of the information, rather than in the information per se. To breach someone’s copyright is to deny a copyright owner the commercial benefit of its creation: e.g., by accessing for free something the copyright owner wants you to pay for. In other words I can’t copy Harry Potter and the Philosopher’s Stone without J.K. Rowling’s permission, but I can tell you the plot.
  • Breach of confidence: Breach of confidence is less about the form of the information and more about its substance: If I have signed a confidentiality agreement I can copy confidential information to my heart’s content, as long as I only use it within the bounds of my licence to use it. In other words, I can do what I like as long as I don’t disclose the content of that information to anyone else. Here the forbidden action is “telling you the plot”: I could do that either by giving you a full copy of the material, or telling you the plot without copying anything at all. Breach of confidence thus creates heightened compliance issues, implying as it does that the confidential information is not public, presenting risks of market abuse and insider dealing.
  • It is the substantive content and not the particular form of the information that is valuable.

Remedies for breach

Big difference here.

Examples

Investor presentation materials

These present:

  • a low risk of copyright infringement (even if you do “breach copyright”, who is going to sue you and what would their loss be?)
  • a fairly low risk of breach of confidence (I guess you might violate securities laws by distributing materials in certain places)
  • a fairly low risk from a market abuse perspective (by its nature investor materials are designed as a pitch to outsiders – and in those IBD scenarios where it might not be, you would be confi’d up to kingdom come anyway.

FT and Bloomberg articles

Commercially published articles (also index outputs and so on) present:

  • a real risk of copyright infringement: here the very business motivation for creating them is that people who read them will be prepared to pay for them
  • a low risk of breach of confidence: By definition this information is in the public domain – anyone who wants to pay for it can have it.

See also