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.

Website design

Various components of a website can be protected by copyright: the design and layout, the text, images, video and sound, and the underlying source code.

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.

Apps

Like a website, an app can have a number of components that can be protected by copyright (e.g. 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, nor the underlying ideas.

Computer programs

Computer programs are protected by the Copyright Act 1968 (Cth) (“Copyright Act”). The Act defines “computer program” as a set of instructions; the Act also includes a computer program in the definition of a “literary work”.

Using others’ material

When using content that you do not own (i.e. that you have not created yourself), you should identify the copyright owner and ask their permission to use their content. In some cases, copyright collecting societies can grant a licence to use the material (see Copyright).

Content that can be protected by copyright includes text, graphics, photographs, animations, film, music, sound recordings, software and database material.

Sometimes, you do not need to obtain permission to use others’ work; for instance when:

copyright has expired;

an exception applies (i.e. fair dealing);

you are not using a substantial part of the work; or

permission has already been granted by the copyright owner.

It is also advisable to get the creator of copyright the material (who may be different to the copyright owner) to consent to the way you want to use their material to avoid infringing their moral rights. For more information about moral rights, seeMoral rights and other copyright issues” in Copyright.

Linking or “framing”

Overview

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.

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 law. This is because linking to or framing a third-party website that includes copyright-infringing or misleading material may constitute an endorsement or re-publication of the infringing material, and expose the website owner to liability.

Case example: linking

Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187

At the heart of Cooper v Universal Music Australia is website A, which provided links to website B (mp3s4free.net). Website B allowed users to download, copy and otherwise communicate copyright-protected music files.

Website A’s owner, operator and website host were found guilty of infringing copyright as they had authorised the copying and communication of copyright-protected songs. The court found that despite legal disclaimers on website A, by providing the links (and supporting a site that provided the links) the website owner and hosts 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 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.

The court’s finding of copyright 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. 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 that are paid advertisements. These links are produced through the use of keywords provided by the advertiser. Some advertisers use competitors’ names as keywords. It was alleged by the Australian Competition and Consumer Commission (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 URL as a sponsored link to the name of a competitor. (This conduct occurred between 2005 and 2008; the High Court considered 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 website that you wish to protect (i.e. to prevent others from copying), you should clearly state on your website:

who owns copyright;

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 you can take 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 using other copy control mechanisms.

Scanning and uploading images

Scanning an image to create a digital version constitutes making a reproduction. Uploading the digital image to a website or emailing it constitutes communicating the image. Reproducing and communicating a copyright-protected work are specific rights of the copyright owner as provided in the Copyright Act. If you wish to reproduce or communicate a copyright-protected work, you need the copyright owner’s permission. For more information about copyright owners’ rights, see Copyright.

Downloading and manipulating images

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

If you wish to alter or add to a digital image to create a new image, you need to obtain the copyright owner’s permission.

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 could negatively affect the creator’s reputation or honour (e.g. distorting the work or using it in a way that is contrary to the creator’s ethics). For more information about moral rights, seeMoral rights and other copyright issues” in Copyright.

Downloading and streaming music, films and television programs

Downloading

Music, films 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 network (e.g. Kazaa, BitTorrent or LimeWire). 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.

Streaming

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 that prevents the data from being stored permanently.

When does downloading and streaming breach copyright?

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 a film is downloaded from a peer-to-peer network.

Legitimate online websites or stores that authorise access to music, television shows and films are rapidly becoming more commonly used (e.g. ABC iview, TenPlay, Netflix, Spotify, Google Play, iTunes, Apple Music and SoundCloud). Such websites 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 (i.e. a 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 before 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.

Copying and sharing music online

Copying and sharing digital content, such as music files, is relatively quick and easy. However, if you do copy and share music without the copyright owner’s permission, you are infringing copyright.

Usually the licence that accompanies the music you purchase outlines the details of what the copyright owner permits purchasers to do with the music file.

Case examples: 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 involved a music label (Universal Music Australia) suing the developers and distributors (collectively referred to as “the Sharman parties”) of software that enabled access to Kazaa, a peer-to-peer file-sharing application. The software, which was free, enabled users to upload and download digital files (e.g. MP3 music files, videos and aps) to Kazaa.

The essence of the litigation was the responsibility of the developers and distributors for authorising copyright infringement by providing the means (i.e. the software) by which users were able to infringe copyright by sharing copyright-protected works without permission. Based on what the Sharman parties knew was occurring on Kazaa, and their ability to put in place filters to reduce the amount of copyright infringing that was 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 be made to Kazaa.

Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16

The High Court has dealt with another file-sharing case in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. The respondent, iiNet, is an ISP.

A number of copyright owners alleged that iiNet was authorising the copyright infringement of films facilitated by peer-to-peer 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

In the US, a court ruled that YouTube was not liable for the copyright-infringing material posted on its website. The court ruled that YouTube only has a duty to remove infringing material when it has knowledge of specific infringing material.

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

Podcasting

“Podcasting” means to deliver a digital audio file (e.g. a radio program) over the internet as a file to be stored and played on a computer or MP3 player.

If you wish to create a podcast (i.e. make audio material available online for others to download), then the content you use must not infringe copyright. Infringement occurs if you use audio content that you do not own the copyright for, and do not get permission to use.

If you download podcasts provided by others that infringe copyright, you also infringe copyright. Amateur podcasts that contain commercial audio content are more likely to infringe copyright than podcasts from well-known broadcasters (e.g. the ABC). It can be difficult to determine whether a podcast infringes copyright.

Webcasting

Webcasting (also called online simulcasting) is distributing media content (e.g. a video of an event) 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 radio program webcasts 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 licences from – and pay additional royalties to – copyright owners, to transmit radio programs over 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 court held that it was Optus (or alternatively, Optus and the subscriber) that caused recordings of free-to-air television programs to be made via the Service, thereby infringing the copyright holders’ rights. The 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 or Pinterest?

Anyone who posts on social media usually owns copyright of their own posts, provided the content satisfies originality requirements for copyright protection. However, a short post (e.g. “I like this restaurant”) is not likely to attract any copyright protection.

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 yourself. 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.