Copyright issues

 

Can you copy an image, photo or other people’s content from the internet or is this a breach of copyright? Knowing what you can and can’t do with website design, podcasting, file sharing, uploading and downloading music and TV shows, simulcasting and social network posts is covered here.

For more information, see Copyright.

Website design

The design and layout of a website, but not the website as a whole, can be protected by copyright. This is a separate matter to copyright ownership of the various components of the site such as the text, images, video and sound. Also the underlying source code may be protected. To maintain control over the future development and operation of a website, rights should be obtained from the website developer/designer. This could be an assignment of copyright or a licence to make changes to the site as required and should be specifically dealt with in a written agreement.

Digital production

A computer programme is defined by the Copyright Act 1968 (Cth) (“Copyright Act”) as a set of instructions and provides for its protection. The Act also includes a computer programme in the definition of a “literary work”. Like a website, the development of an app can involve a number of components that require consideration of copyright ownership (e.g. computer programmes, text, music). Copyright protects the way an app is expressed; it protects the expression of the specific set of instructions but not the function of the software or the app nor the underlying ideas.

Using others’ material

When using content that you do not own (i.e. that you have not created yourself), the copyright owner should be identified and their permission sought. In some cases, copyright collecting societies can grant a licence. (For further information, see Copyright.) Potentially copyright protected material includes text, graphics, photographs, animations, film, music compositions, sound recordings, software and database material.

Sometimes you will not need to obtain permission, for instance when: copyright has expired; an exception applies (fair dealing); you are not using a substantial part of the work; or permission has already been granted by the copyright owner.

Once permission has been obtained, the website owner or manager should keep records of each authorisation or licence to use a copyright protected work on the website. It is important to identify the scope of such a licence, including any limits on use and factors that relate to termination of the right to use others’ work.

It is also advisable to get the creators of copyright material (which may not be the same as the copyright owner) to consent to the way you want to use their material, to avoid infringing their moral rights. For more information on moral rights, see Copyright.

Linking or “framing”

There are possible legal ramifications in linking to or “framing” a third-party website.

Surface linking is where the user clicks on a link and is taken to the homepage of the linked website. This is generally regarded as the safest form of linking. Deep linking is where the user is transferred directly to a sub-page of the linked website and bypasses the home page.

A frame is a part of a webpage that displays content from another website, and has the ability to load content independently.

Without specific permission, it is safest to link to the homepage of a third-party website because the legal implications of providing links are not settled.

Deep linking to pages within other websites and using frames can raise issues for which you may be liable under copyright and consumer protection legislation. This is because linking to or framing a third-party website that includes copyright-infringing or misleading material may constitute an endorsement or republication of the infringing material, and expose the website owner to liability.

Case example: linking

The provision of links from a website known as mp3s4free.net was sufficient for a finding of copyright infringement on the part of the website’s owner and operator, the ISPs (website hosts) and the director of the ISPs that hosted the website, for authorising the copying and communication of copyright-protected songs.

The website did not contain any music files but provided links to remote computers that allowed users to download copyright-protected music files. The court’s finding of infringement was subsequently upheld by the full Federal Court against everyone but the technician, who was found to be a mere employee and therefore not liable. (See Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187.)

The court found that despite legal disclaimers on the site, by providing the links (and supporting a site that provided the links) the website owner and ISPs had “authorised” infringement because the links were for the purpose of downloading music files, and nothing was done to prevent infringements occurring. The disclaimers were not seen to have any effect in terms of limiting liability but rather were seen as evidence that the website owner was well aware of the likelihood of infringing content being made available via the links on the site. Note that an application for special leave to appeal to the High Court on this matter was refused in 2007. This case has been applied by the High Court in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. The iiNet case is discussed in “Case example: file sharing”.

Case example: sponsored links

Google Inc v ACCC [2013] HCA 1

Google publishes sponsored links, which are paid advertisements. These links are produced through the use of keywords provided by the advertiser. Some advertisers use competitors’ names as key words. It was alleged by the ACCC that Google had engaged in misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (“TP Act”) (now superseded by the Competition and Consumer Act 2010 (Cth) (“C&C Act”)) by displaying an advertiser’s web address as a sponsored link to the name of a competitor. (The conduct complained of occurred between 2005 and 2008; the provisions considered by the High Court in this case were of sections 52 and 85 of the TP Act. Equivalent provisions are now contained in the C&C Act.)

The High Court found that ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed them. Thus Google was found not to have engaged in misleading or deceptive conduct.

Protecting your material

If you have material on your site that you wish to protect (i.e. to prevent others from copying), you should clearly attach notices stating:

who owns copyright in the material;

what the copyright owners do and do not permit site users to do with this material; and

who to contact for copyright clearance for any material on the site.

In addition to legal protections there are technical protection measures such as:

advising your ISP of restrictions that you wish to place on access to protected material on your site;

making protected material accessible only on payment of a fee or acceptance of contractual terms of use. This can often be achieved using rights management information technology (which inserts information that identifies the work, the owner and the terms of use for the work). The Copyright Act makes it unlawful to alter or remove rights management information or to deal with technological protection measures without permission; and/or

encrypting (using a technological means to prevent copying) or other copy control mechanisms.

Scanning and uploading images

Scanning an image to produce a digitised version involves making a reproduction, and uploading to a website or emailing the digital version involves communication of the image. Both reproduction and communication of a copyright-protected work are specific rights of the copyright owner as provided in the Copyright Act, and both require the permission of the copyright owner. For more information about copyright owners’ rights, see Copyright.

Downloading and manipulating images

Copying part of an image or photograph from the internet may still infringe copyright if you copy a substantial or important part of the image or photograph. It is important to consider the image itself, not the website or page where it was found.

Altering or adding to a digital image to create a new image will require the permission of the copyright owner if an important part of the first image is recognisable in the new image. Additionally, you may be in breach of the creator’s moral rights if the work is not properly attributed to the copyright owner, or if you alter the work in a manner that will negatively affect the creator’s reputation or honour, for example distorting the work or using it in a way that is contrary to the creator’s ethics.

For more information on moral rights, seeMoral rights” in Copyright.

Downloading and streaming music or films

Music, film and television programs can be accessed via the internet by being downloaded from a website, email, blog, or a file sharing or peer-to-peer (P2P) network (e.g. Kazaa, BitTorrent or LimeWire).

Streaming (either audio or video content) from a web server involves the delivery of data from the server to a device that receives and plays the data while the transmission is in progress (i.e. the user can hear and see the content before the entire file has been transmitted). Streamed content usually contains technology protection measures that prevents the data from being stored permanently. Downloaded data is generally only able to be played once the complete file has been received. Unlike streamed content, data that has been downloaded can be accessed multiple times once the transmission is complete. Internet Protocol Television (IPTV) involves the delivery of television services are delivered using the internet instead of being delivered via free-to-air, satellite and cable television platforms.

Copyright infringement occurs if the copyright owner has not given permission for the song or film to be distributed freely on the internet (unless one of the limited exceptions to copyright infringement applies; seeActs permitted by the Copyright Act” in Copyright). Permission has usually not been granted and infringement may therefore occur if music or film is downloaded from a P2P network.

Legitimate Australian online sites or stores that authorise access to music, TV shows and films are rapidly becoming more commonly used (e.g. ABC iview, TenPlay, Netflix, Spotify, Google Play, iTunes, Apple Music and SoundCloud). Such sites enable content to be downloaded or streamed with the permission of the copyright owners. When you obtain content from these sites (sometimes for a fee) the copyright owner grants you permission (licence) to use the digital content in a particular way. If you copy or share the content in a manner that is different to the terms of the licence then you may be infringing copyright. You should carefully consider the terms of the licence prior to purchasing, particularly if you intend to share the content you have downloaded.

Music Rights Australia is an organisation that protects the creative interests of artists and provides information about legal music services and how to legally access and use digital music services. see www.musicrights.com.au.

Sharing and distributing music online

Copying and sharing digital content is relatively quick and easy. For example, a Microsoft’s Windows Media Player allows users to “rip” (copy or reproduce) a song from a CD by converting it into an MP3 file (or other file format) on the user’s personal computer. The music file is then easily shared by email; downloaded to a portable digital music player (e.g. iPod); posted to a website, or made available on a P2P network.

However, if you do any of these without the permission of the song’s copyright owner, you will be infringing copyright. Usually the licence accompanying your purchased music will outline the details of the permission granted by the copyright owner.

Case example: file sharing

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1

The case of Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 was high-profile Australian litigation involving music labels suing the developers and distributors (collectively referred to as “the Sharman parties”) of software that enabled access to the Kazaa P2P network. The software, which was made available for free, enabled users to upload and download digital files (such as MP3 files). However, unlike earlier P2P networks (such as Napster) the Kazaa network did not require operation through centralised servers, nor physical involvement in the transmission of the files.

The essence of the litigation concerned the responsibility of the developers and distributors for authorising copyright infringement, by providing the means by which users were able to infringe copyright by sharing copyright-protected works without permission (i.e. the provision of the software authorising the users to infringe copyright). Based on what the Sharman parties knew was occurring on the network, and their ability to put in place filters to reduce the amount of infringing traffic occurring, the court decided there had been authorisation. An appeal was heard, but the parties settled before the full Federal Court handed down a decision. Part of the settlement required substantial changes to the Kazaa network.

The High Court recently dealt with another file-sharing case in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. The respondent, iiNet, is an internet service provider (ISP). It was alleged by a number of copyright owners that iiNet was authorising the copyright infringement of films facilitated by P2P file-sharing software. The ISP had not refused access by terminating the relationship if access had been used unlawfully. Thus the copyright owners claimed that that ISP had “countenanced” the infringing activity. The argument was unsuccessful because the court found that the “authoriser” (in this case the ISP) must have power to prevent the infringements.

Case example: YouTube

A US case ruled that the YouTube website was not liable for copyright infringing material posted on the site. The court held that YouTube is only under a duty to take action to remove infringing material, in the event that it has knowledge of specific infringing material.

Equivalent Australian legislation (i.e. the safe harbour provisions of the Copyright Act) means that copyright owners should promptly inform any website if it contains material that infringes copyright.

Podcasting

“Podcasting” allows users to subscribe to and download digital audio files onto their computers and portable digital music players. If you wish to podcast audio material (i.e. make it available online) so that others can download it, then the content you use must not infringe the copyright owned by someone else. Infringement will occur if you use audio content that you do not own the copyright for, or get permission to use, for example, if you included in your podcast a song ripped from a CD without permission from its copyright owner.

If you download podcasts provided by others that infringe copyright, you will also be technically infringing copyright. Amateur podcasts that contain commercial audio content are more likely to infringe copyright than podcasts from well-known broadcasters such as the ABC. It can be difficult to determine whether a podcast infringes copyright. However, the risk of personally incurring liability for downloading a podcast that contains infringing content may not be great. The risk is likely to increase if you re-publish a podcast infringing content.

Internet simulcasting/webcasting

A webcast is media content distributed over the internet using streaming technology to distribute a single content source to many simultaneous listeners or viewers. A webcast may be distributed either live or on demand. Webcasting differs from podcasting in that webcasting refers to live streaming while podcasting refers to media files placed on the internet.

Case examples

Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd [2012] FCA 93

The full Federal Court confirmed that online simulcasts of radio programs are not “broadcasts”. The court stated that “a broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform. Thus the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet”. Radio broadcasters need to obtain separate licenses from – and pay additional royalties to – copyright owners, to transmit radio programs on the internet.

National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59

The full Federal Court found in favour of the Australian Football League (AFL), the National Rugby League partnership (NRL) and Telstra (together, the “rights holders”) in the Optus TV Now Service (“the Service”) proceedings.

The full court held that it was Optus or, alternatively, Optus and the subscriber, who causes recordings of free to air television programs to be made via the Service, thereby infringing the rights holders’ copyright. The full court found that Optus could not rely on the “private and domestic” use exception under section 111 of the Copyright Act).

Social media

What about Facebook and Twitter posts, or images uploaded to Instagram, Pinterest or Flickr?

Anyone who posts to or comments on a social network usually owns copyright in the post, provided the content satisfies originality requirements for copyright protection. A short post (e.g. “I like this restaurant”) is not likely to attract any copyright protection. The operators of the site usually have a licence (found in the terms and conditions) that enables them to use such material.

If you operate a website, and someone else posts copyright infringing material (e.g. someone else’s photo or music) to your site, you are likely to be liable for copyright infringement, even though you did not post the infringing material. For this reason, most sites usually contain terms and conditions of use that require users to not infringe copyright. It is a good idea to respond quickly to complaints about infringing content on a website that you operate.

The law treats social media posts like any other form of communication. Therefore, using social media can involve other legal considerations besides copyright, such as defamation. In short, the author of a social media post is responsible for its content so it is important to consider whether a post infringes the legal rights of other people.

Crowd funding

Crowd funding is an appeal for money via a web-based crowd-funding platform. There is nothing at law to prohibit crowd funding; however, it is worth considering what prizes or inducements are being offered in exchange for the donations being sought. For instance, it may be an infringement of the Corporations Act to offer a revenue share in a particular project. ASIC have guidelines on crowd funding (available at www.asic.gov.au).