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Subject:Copyright as protection against liability? From:"Hart, Geoff" <Geoff-H -at- MTL -dot- FERIC -dot- CA> To:"TECHWR-L" <techwr-l -at- lists -dot- raycomm -dot- com> Date:Thu, 30 Aug 2001 08:34:42 -0400
Caveat: I'm not a lawyer, and am proclaiming based solely on my own reading
(e.g., reputable publications such as the Financial Post, copyright law) and
conversations with Those Who Should Know here, on other mailing lists, and
elsewhere (e.g., a family friend who's a business lawyer). If you want
legally defensible advice, check with a lawyer who works in your specific
jurisdiction; most cities have services that provide free legal advice
(e.g., a 30-minute conversation with a lawyer doing pro bono legal work) or
access to university law faculties who can provide some insights.
Kevin McLauchlan reported: <<... in the last third of the article, he makes
the point that Copyright law might provide some sort of shelter or shield
from bankrupting liability claims against the person who wrote (or
translated) a technical document.>>
"Might provide" are the key words here. Although it's true that the
"corporate veil" generally protects employees--most commonly senior
management--against liability for the company's actions, I've read about
cases in which the guilty individuals were considered to be sufficiently
negligent or even openly criminal that their claim "the company did it, not
me" was considered disingenuous by the court and was disallowed as a
defence. One truism about law seems to be that the letter of the law is
sometimes less important than how good your lawyer is and how charismatic
you are in court. That being the case, if you're writing, editing, or
translating and encounter something that strikes you as ethically or legally
questionable, you need to exercise due diligence and make sure you've raised
the point with someone in authority and covered your ass thoroughly if they
force you to proceed against your better judgment. If you're _really_
worried, refuse the work; a tough ethical decision, but one that's worth
making.
Bruce Byfield continued: <<When you work for a company, the work does not
belong to you; it's copyrighted by the company. Since you are not the
copyright owner, you can't be held personally responsible for any
problems.>>
That's true in any "work for hire" agreement; however, contractors may
occasionally encounter situations in which it's not clear that they've
actually surrendered copyright (e.g., when they haven't received final
payment for their work and thus still retain some rights to it, when they're
producing a work "for one-time use" and retaining the right to reuse the
work). As noted above, you can certainly be held liable if you haven't
exercised due diligence or have been actively incompetent; I'm pretty sure
that one of the STC publications published information on a writer being
named as a co-defendent in a lawsuit because the writer forgot to include an
obvious warning in a manual and someone got hurt as a result. The law
provides some protection against innocent and defensible errors, but much
less protection against professional incompetence. On copyediting-l, for
instance, we've occasionally discussed editorial liability for gross errors,
and reached a general consensus that you do have to take pains to protect
yourself; as a result, many editing and technical writing contracts contain
a clause that says "the client accepts all responsibility for reviewing and
confirming the technical accuracy of the work".
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