Copyright in business letters

23 May 2007

Copyright in business letters

Copyright Solicitors

In a recent High Court Decision of Cembrit Blunn Ltd & Dansk Eternit Holdings AS v Apex Roofing
Services & Roy Leader [2007] EWHC 111, it was confirmed that business letters could be protected
by the law of copyright and the law of breach of confidence.

The proceedings, which involved a dispute about fibre-cement roof slates, began with a
disagreement over intellectual property rights.  The dispute was between a roofing manufacturer
(Cembrit) and a roofing contractor (Apex).  Apex complained that the slates were not of
satisfactory quality, but Cembrit argued that this was due to them not being laid properly by
Apex.  Thus a letter written by Cembrit which considered and discussed the possible settlement of
a claim which had by that time been threatened by Apex against Cembrit in relation to the slates
was circulated by Apex.  The claimants (Cembrit) contended that the circulation by Apex of the
Letter constituted an infringement of copyright and misuse of confidential information.

It was held that the letter was intended for internal circulation only and was not intended for
circulation outside the Cembrit company.  The court confirmed that copyright can subsist in such
correspondence and that it can subsist in business correspondence generally.  The letter was found
to be an original literary work, and it possessed the necessary degree of ‘skill and labour’ in
order to be protected by copyright.  Furthermore, it was held that Apex had infringed the
copyright by copying and circulating the letter. 

In order to establish breach of confidential information, it is well established that a claimant
must establish first, that the information which he is seeking to protect is of a confidential
nature; second, that the information was communicated in circumstances importing an obligation of
confidence; and, third, that the defendant is about to make, or has made, an unauthorised or
wrongful use or disclosure of that information.   Apex’s circulation of the letter had not been
justified. While the letter did contain some information that was widely known, it contained other
additional information. Apex was bound by a duty of confidence not to circulate the letter and
they were found to be in breach of that duty. 

The decision means that business e-mails could also be protected.  In order to protect your own
confidential information, it is worth expressly stating that the e-mail you are sending is
confidential, so that the recipient is aware of this.

Michael Coyle

Intellectual Property Solicitors