Copyright
On the distinction between copyright and confidence
The key thing is to distinguish between breach of copyright and breach of confidence.
Breach of copyright
Copyright subsists in the particular articulation of the information, rather than in the information per se. To breach of 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 the content: 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 the licence I have been granted. In other words as long as I don’t disclose the substantive 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
- Telling you the plot without copying anything at all.
Breach of confidence is where the real compliance issues lie because it implies –
- The Information that is non-public: therefore there are significant market abuse, insider dealing issues;
- It is the substantive content and not the particular form of the information that is valuable.
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.