Use of desktop wallpaper infringing?

'Is it legal', 'can I do this' type questions and discussions.
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iliq
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Use of desktop wallpaper infringing?

Post by iliq » Fri Nov 16, 2012 10:25 am

Hi

After extensive searching around the web I can't seem to find an answer.. hoping you can help me.

I work in IT, in production support (UK/EU). We have laptops (because we work from different sites and from home). My employer has just implemented a group policy to blank out all desktop wallpapers, which we could previously set. I asked why - they replied "due to copyright restrictions".

I can't get my head round this at all.

I suppose I can imagine that someone somewhere downloaded an infringing picture from some site that didn't have the rights to it, but I fail to see how simply setting their own desktop background is a problem. This is not public display, or offering it on, or commercial gain, or company policy, or anything other than an individual, downloading a picture they like, to set as their own desktop background.

So - is it even possible to infringe a copyright by setting your own personal desktop background? If technically it is infringement, would this count as fair use?

Is this a valid fear for my employers?

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AndyJ
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Post by AndyJ » Fri Nov 16, 2012 1:15 pm

Hi iliq,
As you suggest, the only time this might be a problem is when the image being used is an infringing one. There is a technical distinction between viewing an image as part of a webpage and selecting the 'Save image as' option in your browser. The former is generally held to be covered by section 28A of the Copyright Designs and Patents Act, which says:
28A Making of temporary copies
Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—
(a) a transmission of the work in a network between third parties by an intermediary; or
(b) a lawful use of the work;
and which has no independent economic significance.
Saving the image on you harddrive is clearly not a temporary copy in the sense of s 28A, and so would be an infringing act, unless the purpose is for private research, which is permitted by s 29 (1C):

[1C) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of private study does not infringe any copyright in the work.
Also since it is very difficult to check on what individuals do in the privacy of their own homes, it would be impractical to police this sort of copying to make sure it is actually being retained for strictly private study and not some other purpose, such as mere decoration.
However the problem facing your employer is that since they own the laptops on which you work, they are vicariously liable for any acts of infringement which their employees may commit in the course of their duties. So in this case, by having a group policy forbidding the use of wallpapers, they can show they have taken steps to avoid any infringement in this area. This is a sensible precaution because organisations such as FACT can and do obtain warrants to enter business premises to audit IT systems for unlicensed or illegal software, which if it were to occur would also show up the potentially problematic use of wallpapers.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

iliq
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Post by iliq » Fri Nov 16, 2012 7:57 pm

Thank you very much for your swift and helpful response. A valid fear, then, however personally annoying it may be :)

*sigh!*

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