Article Loss Prevention

Intellectual Property Rights

21st Dec 2015 - by Ann-Marie Casserly

The AGS has recently published a guidance document on Copyright issues arising from the use of consultants’ reports and drawings in the planning process, please click here to down for free. It is based on a report prepared by Guy Lane of solicitors BLM following his presentation to the AGS members in March 2013. It gives a useful basic overview of the concepts of copyright protection in the UK and what works created by AGS members may be subject to copyright. A number of examples are given.

The topics covered include a description of the rights which copyright gives rise to, namely economic and moral rights, and who owns those rights and for how long. Infringement of copyright is discussed, as are defences to a claim of infringement, and remedies for infringement.

An important aspect of copyright law for AGS members is that regarding licences. It should not be necessary for the AGS member to give his client copyright in the member’s work as a licence should be sufficient for the client to use the member’s work for the project for it was intended. Some members might feel that this is unrealistic as their clients might expect that the copyright in the member’s work would pass to them. However, giving the client ownership of the copyright in the work may inadvertently give away ownership of valuable know-how and/or stock-in-trade which the member then might not be able to use subsequently in other projects without himself breaching the client’s copyright. The member should consider carefully before agreeing to such terms, and should discuss with the client the sufficiency of granting a licence rather than the copyright.

Members must also be careful in using material other than their own in their work. For example, using some short extracts from a report by another consultant supplied by the client, but for a different project, might breach the other consultant’s copyright as it is unlikely that a licence would have been granted for its use on the current project. AGS members should be careful with the use of data from other sources, for example borehole logs, and ultimately should seek advice from their solicitors if there is any uncertainty over the intellectual property rights.

The AGS Loss Prevention Working Group would like to hear of any problems, experiences, comments or views members have in relation to copyright issues. If members would like to share this information then please contact the AGS at ags@ags.org.uk.

Article Loss Prevention

Depositing geotechnical records with the BGS

17th Feb 2015 - by Ciaran Jennings

Tags: BGS borehole copyright digital files exploration GeoIndex geological mineral National Geoscience Data Centre NGDC open-file records

The British Geological Survey (BGS) collects borehole records, borehole materials and site investigation reports which are maintained by the National Geoscience Data Centre (NGDC). The Survey has statutory rights of access to information and samples from certain mineral exploration and water supply boreholes. The BGS also welcomes donations of information from anywhere in Great Britain in various formats, including analogue, digital and material collections. If digital files are available these are preferred, and in particular in AGS format data.

The AGS supports the aims of the BGS and encourages its members and their clients to donate their geological records, particularly where in AGS data transfer format in order to propagate its use, to the benefit of member companies, industry and for the general public good.

Most of the collections are part of the public record and are made available through a not-for-profit cost enquiry service, and scanned copies of borehole logs can be accessed for free using the BGS website’s GeoIndex. If specified on the BGS standard deposition form, data can be held as commercial-in-confidence for 4 years before it becomes open-file. Special arrangements need to be made with the BGS for longer periods.

It is therefore important that the ownership of the information itself and that of the copyright and other intellectual property rights must be clearly established before data is deposited, and the AGS recommends that members and their clients discuss this issue at an early stage in the commission. It is recommended that members ask their clients to confirm in writing that the member can donate the records to the BGS at the end of the commission. Alternatively, members could include in their standard conditions a clause stating the information will be donated to the BGS on the due date for payment of their final invoice unless otherwise informed in writing by their client.

The BGS offers advice and guidance about clearing intellectual property rights including copyright. Further information can be obtained from the BGS website www.bgs.ac.uk

The Loss Prevention Working Group of the AGS is collecting the experiences, comments and views of its members and their clients on the submission of information to, or the requesting of information from, the BGS and whether they have submitted or requested information in AGS format. Please contact the AGS at ags@ags.org.uk.

Report Loss Prevention

Loss Prevention Working Group Report

22nd Jan 2015 - by Ciaran Jennings

Hugh Mallett, Chairman LPWG writes:

The group is drafting articles and guidance on a number of issues that are important to AGS members, see below for the list of our ongoing work programme and soon to be available guidance.

General

The LPWG met once since the November Committee meeting – 22nd Jan 2015. No calls have been made to the Legal or Chemical Helplines since the last LPWG meeting.

A Griffiths & Armour publication on claims “Professional Indemnity Insurance: Lessons to be learnt” is to be made available to AGS members via the new website

LPWG generally agrees with putting some documents behind a paywall on the new AGS website. There is also support for a knowledge hub (e-learning) that could be considered as a future initiative for students.

Loss Prevention Alerts (LPAs) are still in high demand for downloading [20 LPAs downloaded >100 times between Oct and Jan].

New member has joined the group, Nora Fung – Arup legal.

Recently Published

Newsletter

Elvanite Vs Amec- Limitations of Liability
BGS – Deposition of Data

LPAs

LPA 58 – Risks associated with as built drawings.
LPA 59 – The Consequences of Damage to Underground Services LPA 60 – What is meant by Supervision?

Work in Progress

LPAs
Summaries for the web site being reviewed and edited for accuracy.
Permission is being sought for publication of LPA 09 [Mott MacDonald case] online.
Contractors seeking contractual indemnities from their Sub Contractors. Ready for publication

Net Contribution Clauses: Newsletter article prepared. Authorisation to publish being sought from Griffiths & Armour.

Document on Ground Investigation Reporting (GIR/ GDR): Initial redraft prepared by J Strange – subject to further review/ comment. Now held to be consistent with revised BS5930.

Asbestos & deleterious materials: Newsletter article to be prepared [may also pick up discussion at Members Day]. Article on insurance cover re asbestos last published in 2011 to be re-published.

Collateral Warranties: Griffiths & Armour being approached to allow their Collateral Warranties – Basic Guide to be made available to AGS members. If permission is granted a short article highlighting its availability to be prepared for the Newsletter.

Expert Advisor and Expert Witness: Newsletter article being prepared. 1 of 2

Copyright Paper on copyright issues: drafted [advice to Members on copyright and on issues arising from use of reports and drawings in planning process].

PI Insurance for Contaminated Land: NEC3 contract requires insurance terms to be on an each and every claim basis. Aggregate cover only available for contaminated land (and asbestos and radioactivity). A newsletter article is being drafted.

Guide to report writing: Newsletter article drafted to advertise the guidance to AGS Members. The Guide itself was up-dated, but never published. Up-dated version to be retrieved, put on the web site and publicised in Newsletter.

Limitation period and defects liability: Article being drafted

Confidentiality and Intellectual Property Rights: issues for Staff on Secondment Loss Prevention Guidance drafted to address some of the issues arising from secondment of staff.

Signing contracts under duress: Newsletter article being prepared.

Client Guide: What Institutions, Trade Associations or other organisations might a Client expect a Geotechnical/Geoenvironmental Company and their employees to belong to? Paper in preparation.

Piling Damage to Live Railway Tunnel. Paper in preparation.

Article

Copyright Regulations Potential Loss Risk or a Hidden sources of Revenues

27th Dec 2005 - by Ann-Marie Casserly

Tags: copyright Loss Prevention Measures permission Site Investigation

Every document issued in the pursuit of producing site investigation information is in some way affected by:

Many people are unaware of the important changes in the law brought about by the enactment of these regulations in October 2003. The key point of note with respect to site investigation work is the changes in the law regarding the copying of documents for research. This is a key factor in the production of desk studies.

There is useful a document available for download from the Copyright Licensing Agency (CLA) at:

http://www.cla.co.uk/support/business/guidance-for-businesses.pdf

It states in this document that:
“..under the old law, copying undertaken for research or for private study was an exception; provided that the copying could be classed as ‘fair dealing’..”

It goes on to say that:
“Under the new law, any copying for research or private study, which is carried out for a commercial purpose, will require prior permission from the copyright owner or a CLA license to permit certain copying.”

Conversely documents produced by business are now better protected and rights to further payments for multiple reproductions of reports are inherently supported more strongly by the change in the law.

There may be exceptions to the regulation where the documents being produced incorporate copies of other works are expressly for the use of a court of law or recognised arbitration body. However, individual circumstances should be checked as there may be case specific exceptions.

The CLA operates a free help line to answer queries about copyright and the need for licenses: 0800 085 6644

Loss Prevention Measures

1. Obtain a copyright license relevant to your business.

2. Where an item is not covered by the license obtain permission to copy from the author, or rights owner.

3. Study CLA guidance in this area.

4. Protect your own copy right, where appropriate.

5. When producing documents consider what reasonable charge you might make for its reproduction in advance of being asked.

6. If you chose to allow reproduction seek legal advice on the reliance others may place on it as a result of you granting permission for copying and distribution.

TC White
Marquis & Lord