Using Copyright Material Online

by Jun 10, 2020

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.