Using Copyright Material Online

Using Copyright Material Online

Using Copyright Material Online

What is copyright?

Copyright is the legal protection given to any kind of work (eg writing, movies, website content) which has been created by a person. 

Copyright gives the owner of the copyright in the works the exclusive rights to:

  • reproduce the works
  • publish, perform or otherwise introduce the works to the public for the first time and any other time thereafter
  • control the importation of the works to other countries
  • rent the works out to other people
  • assign or license the rights in the works to others. 

There is no need to pay for, register or apply for copyright in any works, it is something that is automatically given when new works are created. 

The work does not need to be published, or made available to the public in order to be protected by copyright, nor does it need the copyright © notice. Protection is free, instant and automatic as soon as the work is created.

Copyright protects a wide range of works which include:

  • written work (“literary works”), which include newspaper and journal articles, songs, poems, screenplays, novels etc
  • computer programs
  • compilations, which include things like albums 
  • artistic works, such as paintings, drawings, photographs, sculptures, architectural plans, buildings etc
  • dramatic works, such as screenplays, theatre works and choreography
  • live performances
  • musical works
  • films 
  • broadcasts, such as television or radio broadcasts
  • published editions (copyright applies separately to the layout of a publication and to the actual content of the publication)

Some works which attract copyright protection, have copyright in more than one aspect of the works.

For example a musical recording will attract copyright in relation to:

  • the lyrics of the song
  • the musical composition of the song
  • the actual recording of the song
  • and also in relation to the live performance of the song.

Who owns copyright?

Although parties may agree to change the standard position on copyright, generally, the person who creates the work is the owner of the copyright in those works.

There are a few exceptions to this rule however:

  • Where work is produced by an employee for the employer. By law copyright belongs to the employer. When signing a contract for employment, the employee will usually confirm that they assign to the employer any copyright in work produced by the employee as part of the employee’s job.
  • Where work is produced by a freelancer, such a photographer, the general position is that the copyright will be with the freelancer. The exception to this is where somebody commissions a freelancer to produce work for a private or domestic purpose. For example, the photos produced by a photographer at a wedding; copyright will sit with the bride and groom, not the photographer unless there is something different in writing between the parties.
  • In relation to film and sound recordings, usually the copyright will be owned by with whoever paid for the recording to be made (eg. the producer).

What are moral rights?

Even if the creator of the works does not own the copyright in the works (such as when an employee develops some work for their employer), the creator still has what is known as ‘moral rights’.

Moral rights give a certain amount of protection to the work of the person who created the works. These rights include:

  • The right of attribution, which means the creator has the right to be given credit for their work when used by anyone else – including the owner of the copyright. For example if a photograph appears in a magazine, although the magazine may own the copyright in the photograph, the photographer still has the right to be given credit for their photo by having their name put on or next to the photograph.
  • The right to defend against any false attributions to their work. That is, if someone gives credit to another person for the creator’s work, the creator may take legal action against this. After this change in the law a variety of people who had had books ghost written suddenly started acknowledging the true writers for their ‘contribution’.
  • The right to take legal action if their work is treated in a way which has a negative impact on their reputation. Like a building being defaced.

A person can only give up their moral rights by agreeing to do so, in writing.

attribution of works

Attribution is like avoiding plagiarism.

Attribution of works means that, in your work, you give credit to the other people whose work you have used within your own work. This ensures that you do not breach the creator’s moral rights.

Attribution of another person’s work may also be necessary where you use material under a creative commons license or where you intend on relying on a ‘fair dealings’ exception to copyright infringement. These are discussed below.

How do I properly attribute the work of someone else?

If the creator of the works has not specified how they would like to be attributed, then as long as your attribution is clear and obvious enough that the audience to your work knows who the original creator of that particular part is, that is all that is needed.

WHAT DOES ‘FAIR DEALINGS’ MEAN – AUSTRALIAN POSITION?

‘Fair Dealings’ are those situations where you may use someone’s work (which would normally be protected under copyright law), without asking for their permission to use it.
There are very defined circumstances when this can be applied. To fall under the ‘fair dealings’ category, the use must be for one of the following reasons:

  • research or study 
  • criticism or review – this involves making a genuine review or critique of the material or the ideas underpinning the material, there cannot be ulterior motives for the review/critique 
  • parody or satire 
  • reporting news – the reporter must be using the copyright protected works for the main purpose of reporting the news, not for any other purpose (such as a funny article which is actually intended to entertain the audience rather than report the news)
  • and for the purposes of advice by a lawyer, trademarks or patent attorney.

To rely on any of the ‘fair dealing’ exceptions to copyright, you must be able to prove that the use does in fact fit into one of those categories above, AND that the use of the work in question was also fair in the context.

In addition, if you use copyright protected works without permission and plan to rely on a ‘fair dealings’ use, then you must acknowledge the source and the author of the original works in your own work (see attribution above).

What does ‘fair use’ mean – United States position?

In the United States, there is a similar concept called fair use. The fair use exemption is wider than the Australian concept of fair dealings. 

The United Sates provision includes purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. These categories are more flexible than the strict Australian counterpart. 

To determine if a use is a ‘fair use’ the following factors should be considered:

  • The purpose and character of the use, including if the use is of a commercial nature or is for nonprofit educational purposes. The more commercial the intended use, the more likely the fair use exemption will not apply. 
  • The nature of the copyrighted work.
  • The amount of the portion used in relation to the copyrighted work as a whole, and whether it is a substantial part. Substantial does not necessarily mean a lot. It can be a small but distinctive part.  
  • The effect of the use upon the potential market for or value of the copyrighted work. 

So, if you plan to use copyrighted material for one of the categories (eg news reporting) then you may be able to do so if the use would be fair (based on a consideration of the above factors). In general, the word fair means the use is not harmful to the original creator of the work. 

In this example, the use of an audio clip (like a quote from Winston Churchill) or a video clip (from a movie or television program) to emphasise a point in a podcast, would be likely to be considered fair use.

What is a creative commons licence?

A Creative Commons license is a license that the owner of copyright may choose to use to allow other people to use their works without any payment or need to ask permission for use.

There are various Creative Commons licenses which set out the different terms of use according to the type of license chosen by the person who owns the copyright. Some licenses may only need you to give credit to the person whose work you are using. Other licenses will prevent you using that particular work for commercial or profit generating reasons etc. 

WHERE CAN I GET CREATIVE COMMONS LICENSE MATERIAL FROM?

Material which is made available for you to use via a creative commons license (ie. you don’t have to seek the copyright owner’s permission before using it), is available right across the internet.

One good place to start is creativecommons.org.

This website allows you to search a range of sites which offer creative commons licensed material for your use. 

WHEN DO I NEED PERMISSION TO USE COPYRIGHT MATERIAL?

As a general rule you must get permission to use someone else’s works whenever you want to use those works in a way which is reserved for the exclusive use of the owner of the copyright. ie. whenever you want to publish, communicate, reproduce, perform or alter the works, or any part of the works.

Even using a small part of some copyright protected works could see you infringe copyright. If the part that you want to use is a “substantial” part, that is it is an “important, essential or distinctive” part of the works, then you will need to get permission from the copyright owner.

As an example, still shots from movies and television programs are something you should, in theory, seek permission to use. However, unless you are using that still for a commercial purpose (eg. putting on mugs or t-shirts and selling them because of the image) you are unlikely to have any problems.

Some good questions to ask yourself, “Am I using somebody else’s work?” If yes, then: 

  • Has the creator of that work used any skill or labour to create the work that I would like to use? For example, have they gone out to a statement from a source themselves, or have they copied the statement from somewhere else? If they made the effort to get the statement themselves, that act has required some skill and labour from the copyright owner, whereas copying a statement obtained from another source would not. 
  • Do I want to use a “substantial” part of the other person’s work? ie. Is it an important, essential or distinctive part of the work that I want to use? The word “substantial” does not indicate the amount of the work that you want to use, as a percentage for example, just the overall significance of what you want to use.

If you answer ‘yes’ to these questions, the safest option is to seek permission from the copyright owner to use the material in questions.

There are some exceptions to this rule however, where there is: 

  • a ‘fair dealings’ exception
  • creative commons license, or
  • copyright has expired (generally 70 years after the death of the creator however there are various times depending on the year it was created or first published).

WHERE DO I GET PERMISSION TO USE COPYRIGHT MATERIAL?

A good place to start when looking for permission to use the work of someone else, is with the publisher of those works.

Another place is with a copyright collective agency. These are agencies which grant permissions and receive payments for copyright licenses in a range of copyright protected industries. There are many such agencies right around the world which operate locally (such as across Australia) or globally.

In relation to use of government owned materials, you should check the government websites for permitted use for each particular government.

How can Onyx Legal help you?

If you want purchase copyright work, license copyright work, ensure your employees understand that you own copyright in their creation, protect your copyright work, or defend a claim of copyright infringement contact us.

Avoid copyright infringement with Facebook Live

Avoid copyright infringement with Facebook Live

Avoid copyright infringement with Facebook Live

On 3 February 2017, Australian television broadcaster Foxtel televised a highly anticipated boxing match between two well-known boxers, Danny Green and Anthony Mundine. To watch the fight, viewers were required to subscribe through Foxtel and pay a fee to watch the fight live on TV.

Australian resident Darren Scopyright fair use in Australiaharpe was a genuine Foxtel subscriber who paid the required fee to watch the fight live. For those who aren’t exactly sure what live streaming is, it’s the ability to broadcast audio and video as it happens. Any time you want to “go live” you can and anyone watching your posts on Facebook can see you, or whatever it is you are streaming.

Sharpe made the mistake of using his phone to record the fight and stream it live through Facebook Live. While he was live streaming the fight, Sharpe received a call from Foxtel asking him to stop. It was reported that he said he couldn’t, because he has 70,000+ people watching it, which was exactly Foxtel’s point. While Sharpe was allowing a bundle of people to watch the fight for free, Foxtel and all those Sports Bars out there were losing revenue.

When Sharpe refused to stop the streaming, Foxtel immediately suspended his subscription, himself and his followers missing the rest of the fight.

Sharpe did what he did on purpose, and continued after receiving notice of infringement. You should also be aware of the risk of accidental infringement. You might have seen some television shows blur posters, signs, t-shirt branding and other images. It is usually because what has been blurred is protected by copyright and the producer didn’t get permission. It is easy to blur a background image when you have the ability to edit, but not in live streaming. If you infringe someone’s copyright, even accidentally, there can be consequences you didn’t anticipate.

Originally Foxtel claimed that it would pursue legal action against Mr. Sharpe for breaching copyright. Luckily for Mr. Sharpe, that legal action was dropped after he posted a carefully worded public apology on his Facebook page. It is unclear what conversations occurred between Foxtel and Facebook. Given that Mr. Sharpe was able to so easily live stream the fight from his Facebook page, it raises the question –

Should Facebook be responsible for copyright infringement?

Probably not.

One side of the argument is that Facebook should be more responsible for what users post as it has the ability to police the content on its website and act quickly to disable infringing material. On the other hand it is costly and time-consuming to monitor the Facebook page of over 1 billion users. Facebook terms and conditions do require all users to have permission to use the content they upload, whether written, audio, video, or as is now available, through live streaming.

United States legislation requires online service providers, such as Facebook, to take action against copyright infringement. The Digital Millennium Copyright Act (“DCMA”) exempts online service provides from liability for copyright infringement by its users in certain situations. There is no Australian equivalent. The exemption requires online service providers to take down, remove or disable access to infringing material where it is given notice that offending material has been posted on its network. It is clearly working. Facebook’s copyright policy provides rights holders with an easy mechanism to give notice to Facebook that intellectual property have been infringed and have the offending material removed or have a user’s profile disabled.

Facebook Live copyright infringement

Can Facebook be over zealous in taking down infringing content?

Has the DCMA and its safe harbours caused Facebook to be over zealous when taking down material and disabling profiles?

Facebook page administrators are given no warning that the page would be shut down. Anybody with an email address, real or fake, can make a complaint to Facebook without having to validate the claim, effectively giving anyone the ability to shutter any page without proof.

Facebook has suffered criticism in the past (Huffington Post) for shutting down pages where copyright has been alleged, when in fact no copyright infringement existed. The above extract of Facebook terms shows the ‘hands off’ approach taken by the company after Facebook has removed content. What is worse, is when a business page is removed without warning, taking potential customers and contacts with it. In late 2017 a Queensland client had their page removed and received email notification from Facebook referring them to the company that lodged the complaint.

Hello,

We’ve removed or disabled access to the following content that you posted on Facebook because a third party reported that the content infringes or otherwise violates their trademark rights:

Page: ###

Facebook is not in a position to adjudicate disputes between third parties. If you believe that this content should not have been removed from Facebook, you can contact the complaining party directly to resolve your issue:

Notice #: ###

Contact Information
Rights Owner: ## Inc.
Email: ##
Trademark: ##

If an agreement is reached to restore the reported content, please have the complaining party email us with their consent and include the original reference number. We will not be able to restore this content to Facebook unless we receive explicit notice of consent from the complaining party. Please note that the complaining party is not required to respond to your request.

We strongly encourage you to review the content you have posted to Facebook to make sure that you have not posted any other infringing content, as it is our policy to terminate the accounts of repeat infringers when appropriate.

For more information about intellectual property, please visit our Help Center at https://www.facebook.com/help/370657876338359/.

The Facebook Team

In this instance, the rights holder had a trade mark registered in the United States. Intellectual property rights are not granted worldwide. The Queensland company had the same trade mark registration pending in Australia. Facebook appears to be very U.S.- centric in how it reviews rights. The help centre information suggested that an appeal process would be available, but then failed to respond to any communication.

Facebook-content-take-down

Facebook’s aggressive stance on copyright and trade mark infringement may hinder the impact of genuine rights holders. Where someone in the United States and Australia have the same trademark in respect of similar goods, both are equally as enforceable as each other in their respective territories.

Facebook has put the onus back on rights holders to work the details of the infringement out for themselves. Their copyright policy states that users can follow up (by email) with the person who alleges the infringement. It also provides guidance on how to file an appeal if the content was removed due to a take down notice under the DMCA.

Facebook’s policy surrounding two legitimate rights holders is not clear but it appears they are acting cautiously. It may be the case that whoever gets in first to lodge infringement with Facebook may be the winner.

However, in the case of live streaming, Facebook’s response time might simply not be quick enough to protect their interests and alternate avenues will have to be explored.

How can Onyx Legal help you?

If you have any questions about copyright or trade marks, contact us to find out how we can help.

What Happens when Someone Claims Copyright Infringement Overseas?

What Happens when Someone Claims Copyright Infringement Overseas?

What Happens when Someone Claims Copyright Infringement Overseas?

Where in the world can you take action for copyright infringement?

The topic for today is copyright.

Our client has received a letter of demand from Germany.

Now, you are not obliged to go to the courts somewhere else in the world if on your website you have terms and conditions that say the governing law is Australia, or if on your piece of material it says the governing law is Australia. Copyright laws are similar internationally in line with treaties, but are limited by country if you want to take legal action. If you specify the governing law you are in a position to argue that an action started somewhere else in the world is outside its jurisdiction.

So in our client’s case, the dispute is in regard to a book cover. The inside cover states that the governing law is Australia, it’s published by an Australian company and the artist involved is based in Germany.

We have told the German lawyer, “If you want to take action against our client, come here to Australia and take action here.”  Because even if there is a decision in Germany, they can’t enforce it against our client in Germany because the client has no property there. That means they can’t make our client pay unless they come here to Australia and execute against the client’s property here in Australia. So they have an uphill battle in front of them.

When you’re being pursued by someone from overseas for a copyright issue, remember it’s going to be hard for them to get money out of you if they’re in another country. 

How can Onyx Legal help you?

If you are worried that someone is infringing your rights under copyright law, or you receive a letter alleging that you are infringing copyright law, contact us so that we can help you chart a way forward.

Copyright Online & Trademarks Online Infographic

Copyright Online & Trademarks Online Infographic

Copyright Online & Trademarks Online Infographic

Legal Essentials for Business Online

One of the 7 Legal Essentials for doing business online is understanding how to use Copyright and Trademarks so that you don’t run in to legal trouble.

We’ve put together this simple legal infographic to help you out with:

  • 5 Things You should know about Copyright Online (legal infographic)
  • 5 Things You should know about Trademarks Online (legal infographic)

How can Onyx Legal help you?

If you’d like to understand how to protect your business copyright or trademarks, or defend a claim that you have infringed someone else’s rights, contact us.

How To Use Copyright Images On Your Website And Avoid Legal Claims

How To Use Copyright Images On Your Website And Avoid Legal Claims

How To Use Copyright Images On Your Website And Avoid Legal Claims

Your Company has been Using Unlicensed Copyright Images

I’ve been getting lots of questions lately about what you can and can’t do with copyright images you find online. Loads of people seem to think that just because an image shows up on a Google search it must be available for use for free. It is a common misunderstanding and now that technology has caught up, is likely to get a few people in trouble.

You might be one of those businesses who got a web developer to put together a website for you years ago, and relied upon them to sort out your images. Actually, it might not have been that long ago!

Do you know where your images have come from?

Just last year my 74 year old mother wanted a website for her Life Coaching business and briefed a small independent developer to do it for her. The very helpful and inexperienced developer said she’d look after the images and told Mum not to worry about it. When I looked at the website I was immediately really worried – all stock images (some still showing watermarks) and no licences or permissions!  My immediate concern was to avoid getting any legal demands for payment for breach of copyright and a take down notice. We’ve since replaced all the images with appropriately licenced copies.

Before digital cameras, photographs weren’t likely to be shared

Copyright is something that is automatic. When a photographer takes an image, they have copyright in that image. Yes, there are exceptions, but let’s stick with the basics for now.  So if you take a photo, you own copyright in that image. Would you be OK if other people used your image to promote their business? Or would you send a legal letter of demand?

In the old days before digital cameras and Facebook, you had to get your photographs processed at the local camera shop or pharmacy. Then they moved into supermarkets, and now you can order your prints online and get them delivered in the post, if you get them printed at all.

When photographs were only really shared in hard copy, it was much easier to keep track of copies and how they were used. Today, you might share a photo on Facebook, Pinterest, Instagram or any one of a number of other social networking sites and think that no one will use it. That happened to a family who have a daughter with Down syndrome who is quite ill and undergoing life-saving treatment. They rarely posted photographs and when they did it was meant only for close friends and family.  Just one image they posted was taken by an unknown person and uploaded to a stock photo website.  The company that used the photo was advertising a prenatal test that often leads to abortions. It is not the first time a photo of a child with a disability has been misused.

Mother horrified after a company used photo of her young daughter for an offensive ad

Can you imagine how you would feel if you were incredibly protective of a member of your family, and suddenly saw their image plastered all over advertising at every bus stop and tube station you went past? All without your knowledge or consent. That is what happened to that family. The company using the image in their promotion were naturally equally distressed. They had followed the rules (about purchasing images, not about being sensible how they use them) and still ran into trouble!

With digital cameras and social media it’s so easy for images to spread internationally, overnight. That is the problem.  Because images are easily accessible, people think they are free. But the same rules that applied when images were hard copy, apply today.

See a picture you like – What should you do?

What a lot of people do is use a copyright image without any thought for the consequences. Most people have no idea they are doing anything wrong. The trouble is, that can come back and bite you! You could get a legal letter of demand any day!

People complain that if you put an image out there, you should want to share it. This isn’t limited to images. A company in South Australia recently announced that they have lost $3,000,000 in sales due to the illegal download of just one of their publications. Could you afford to lose that much from your business? Do you still feel that anything you find online should be free to share?

Copyright is meant to protect the livelihood of the author, artist or creator

So, what should you do if you find an image you like online, before you plaster it on your website or social media post?
Firstly, get permission.

Yes, getting permission can be a complete pain in the @rse. Speaking from experience, it is particularly difficult to get permission to use stills from movies. I don’t know why movie houses make it so hard. Maybe the studios that produce those movies don’t recognise the need, don’t care or don’t want people to use stills from their movies. Hey Dreamworks! There is potentially a whole added industry in stills, just saying…

Anyway, sorry, back to the topic at hand –

Getting permission

If you purchase stock images, you get permission in the form of a license to use that image. You’re not actually buying the image like you would a postcard; you are buying a limited copyright license attached to the image. All of the images in this post are subject to copyright license. An example of some license terms include:

  • …a non-exclusive, royalty-free, perpetual, worldwide, non-transferable sub-license to use, reproduce, modify and/or display the Work, for any purpose other than as prohibited…
  • By way of example, the above license may include the use, modification and/or display of the Work in connection with the following… Business and commercial purposes…
  • …may post and/or upload the Social-Media Enabled Works directly onto Social Media Websites and Applications as long as…
  • For greater clarity, it is noted that reproducing the unmodified Work on mugs, t-shirts, posters, or other similar merchandise for resale is not permitted, as primary value would still lie in the Work itself.

So, check the copyright license terms of your stock image or clip-art provider. Note that some have copyright terms that are time limited, rather than perpetual.

What if it is not a stock image?

If you want to use an image from somewhere else, you need their permission. If the owner is easy to find, then asking directly and keeping a copy of their written consent, is the easiest way to prove that you did have permission to use the image and the time you used it.

It is your responsibility to know the origin of your copyright images and to have the right permissions to use those images online.

 

How can Onyx Legal help you?