Tuesday, 12 March 2013

Call recording

We provide call recording services to customers and record calls ourselves.

We know of OFCOM guidelines on this. We have set up at the office so that each member of staff records their calls individually for their own use and they alone get the call recording.

Alex recorded his call he made to Simplify Digital (well, he intended to call broadband.co.uk not Simplify Digital). See his blog post for details. He made the recording for his own use, and had no intention of publishing it.

I think that means, based on the OFCOM guidelines, that (a) he did not have to tell anyone he was making the recording, and (b) the making of the recording itself was legal at the time. I assume it cannot be made retrospectively illegal, can it?

Alex used the recording to ensure his memory of the call was correct when making the blog post, which is his personal use of the recording, so all OK there.

Then, his integrity was brought in to question by some of the commentators, and he felt the only way to prove what was said was to post the recording on the blog. To be clear, up until that point, he had no intention of publishing the recording.

I have been in the same position, making a recording for my own personal use with no intention to publish it, and then later publishing the recording. It is only after the call that I feel it should be published for review and comment publicly as a journalistic news item on my blog. When making the recording I have no intention of publishing it, else I would be publishing all my calls!

So, I think making the recording is all fine, what would be wrong with publishing it? The obvious one is copyright, which was itself raised by Simplify Digital.

Again, I am not a lawyer, but it seems there is a copyright in the sound recording itself. However, that copyright vests with the person that made the recording, i.e. Alex. What else could there be? Well, if the words used, even if made up on the spot, counted as a performance of a literary work, then they would be copyright too. I don't think the content of the call can really be called a literary work, but is it? If so, is quoting it, or even publishing the recording, a breach of copyright?

Thankfully they have stated to Alex that they will not take any action regarding the recording. Even if they did, they would have to contrive what damages they suffered by it on top of simply what was stated in the blog post, I think, so I don't think Alex has anything to worry about.

But, in theory, could this have been legally wrong, and if so why? I wonder.

Interested in any comments.

18 comments:

  1. What if Alex had just published a transcript of the call?

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    1. Well, I guess, if the content is a performance of a literary work, then that too would be breach of copyright. I am trying to understand if there is any breach of anything :-)

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  2. It sounds to me like they were just making threats to suppress criticism. Maybe hoping he'd remove the recording or even the entire blog.

    Call centres routinely record calls so they can't claim they didn't know the call was being recorded.. The copyright thing sounds totally bogus - as you say Alex would be the copyright holder in this case.

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  3. I would like to point out that they never made a threat. Simply said that these were the rules (pasting a bit of a website) and said they wouldn't make a fuss. No threat was made.

    But I would like to know, if subsequent to making a recording for one purpose and with absolutely no intent to bother to publish and share, one decides, "actually, I'm going to have to publish this" whether (under the LETTER of the law) one has done anything wrong.

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    1. Could you get caught by the DPA?

      You can only use data for the purpose for which it was gathered. For your own personal use, by then using it for publication you are using it for another purpose.

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    2. Interesting, but that only applies to personal data about an identifiable living individual. I guess Alex could beep his name.

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  4. "Recording without notification is prohibited where some of the contents of the communication—a phone conversation or an e-mail—are made available to a third party"
    according to Wikipedia: http://en.wikipedia.org/wiki/Telephone_recording_laws#United_Kingdom
    which has a lot more details.

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    1. I thought the letter of the law was all about "intent".

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  5. I think I would tend to agree with Simplify Digital on this.

    Try recording an episode of 'In our time' (the first ad-libbed discussion program I can think of) from the radio and publishing that and see how far your "Words made up on the spot aren't literary works" argument gets you when the BBC come after you for copyright infringement.

    If you're recording me with my permission, you're breaking my copyright.

    Even if I grant you explicit permission to record me, that cannot extend to playing of the copyright material to third parties without some form of licence agreement.

    My own view is that if I am made aware that the call may be recorded and I continue with the call, then I am granting you permission to record the call and also any and all licences required to use the call for any reasonable purpose. If I am not aware the call is being recorded, then you have absolutely no right to use the call for anything other than personal purposes.

    I'm sorry, but I really think Alex should not have published the call. Made it? Yes. Referred to it to ensure he was correctly quoting? Yes. Published it or shared it with any third party? Absolutely not.

    However, I would argue that if Alex was greeted with a "Your call may be recorded" message, this would be an acknowledgement from the callee that the call could be recorded and therefore Alex would be perfectly able to record and use the call himself. Unfortunately, the beginning of the call appears to be missing (I assume it was answered as the ring tone is not a UK one), so I can't say whether this is the case or not.

    Assuming that there was no "your call may be recorded" message, Alex's comments at about 43 seconds are really worrying - "I love having all my calls recorded" would seem to indicate that he is deliberately recording the call for future use. Given that he made the call to try to catch them out, it's not too long a stretch to assume that his publication of the recording was on the cards right from the start.

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    1. The chronology is demonstrable though. I had no intention to publish the recording; it was added later. If the letter of the law says that it is based on intent, then I genuinely had no intent to publish.

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    2. My third paragraph should, of course, have read "If you're recording me without my permission, you're breaking my copyright."

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    3. Copyright in unscripted live events isn't guaranteed - the BBC may have copyright in the audio recording of In Our Time, but there is no 'source' to be copyrighted.

      It's unlikely any copyright exists in your conversation, otherwise broadcasters would have to gain permission every time they talk to a man in the street. They don't.

      Further, last year a European court judgment on UK pubs showing live football from a source other than Sky (e.g. foreign satellite TV) ruled that there is no copyright in the matches, only in things like the on-screen graphics and music added by the broadcaster, because football matches are simply a series of unfolding events, and I'd imagine a conversation like this is much the same.

      However, call centres often use scripts, so Simplify Digital could argue that at least half of the conversation was scripted, provided their agent stuck to his script.

      I'm pretty sure that Andrew Ducker is right that UK law requires you to notify the other person if a call is being recorded for any reason (or none at all) - I once had an answer machine which could record calls but beeped while doing so to alert both parties. Otherwise you're effectively wiretapping without a warrant, which I'm fairly sure is illegal.

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    4. Interesting. The notice thing is fun as OFCOM are pretty clear that there are plenty of cases you don't need to notify. It used to be simple, as long as one party knew (e.g. Alex) then it was OK. More complex now as seems to relate to intention for which recording is made, so wooly! That said, a lot of places you call start with "This call may be recorded" so that is permission to record is it not? Also, as long as party to call knows it is record by someone that is good enough, and I am sure the call centre records calls so they know the call is recorded anyway...

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  6. I've sometimes recorded calls when I have suspected I may need to use it later. In all cases the business I've called had one of those recorded messages about training and quality purposes so, from my mind, they are happy for the call to be recorded and can have no complaints later on.

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    1. They always seem to use the phrase "This call may be recorded", which seems to be giving me permission.

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    2. Furthermore, if the copyright argument makes sense then it works both ways, and you could tell any call centre (you gave them permission to make a recording for training purposes not permission to copy it) they were breaching copyright if they took a copy of your conversation and actually used it.

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  7. What's the legal difference between releasing a phone recording and publishing, for example, a particularly bad example of customer service by email / letter / live chat? There seems to be an acceptance that people will do that latter. Something to do with being able to personally identify the individual? What if you scramble the voice?

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  8. I've often wondered with regard to calls to large call centres, when they state, as many do "Calls may be recorded", although they INTEND to tell you that *they* will be doing the recording, they're actually giving you permission to record also!

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