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This module discusses how copyright works, including how to protect your copyright online and not infringe on others.
Key learning outcomes:
Hello. My name is Jeanette Jifkins from Onyx Legal. Thanks for joining me today.
We are going to be talking about copyright today, but first let me tell you a little bit about our business. Onyx Legal is a local commercially focused law firm, helping people who do business online. We're practical. We speak in plain language and we try and make things easy for you. All of us have lots of letters after our name. The senior team have all run businesses before, so they understand what it's like for you in a small business. And I've also written a book to help you out, Cover Your Arse Online, which is designed to help you, running your business online ,and getting things right.
Okay. Understanding copyright online. What we're looking at here is not just using other people's copyright, but also how to protect your business copyright online.
We're going to cover what copyright actually is as a legal concept. Using copyright works and protecting your business.
So please remember this is general legal information. It's not specific to your circumstances. If you do need advice, you need to speak to a lawyer about it. And please don't actually share advice with other people. You might think you're helping them, but they're better to get their own advice specific to their circumstances as well.
So, what is copyright? What you need to know is it's a bundle of rights. It's not just one concept or one thing. It's economic and moral rights. So by economic rights, what we're talking about are all the financial side of things. And by moral rights, what we're talking about are your ability to be identified with a work or a creation.
Copyright is protected as soon as it's created. So you don't have to register it to get protection. You don't need to use the copyright symbol, the little C in a circle. When you do use it, it shows other people that you're wanting to protect your works. So although you don't have to use it, it is a good idea to let other people know that you intend to protect your copyright work.
Copyright covers writing images, music, video, software code, sculpture, and even architecture. It has to be recorded in a tangible form for protection. So you might be aware that in our indigenous community, there's a lot of oral tradition. Unfortunately, copyright law doesn't currently protect that oral tradition. It only protects it once it's recorded. So, recorded by film or recorded in writing or in pictures or something like that.
Some copyright basics. Copyright has to be more than just an idea. You might be familiar with people who say, Oh, I had this great idea for a movie or a show, and they go to a production company and then it's produced, or you might see a couple of movies come out in the same theme in the same year. Recently we had, a couple of movies around Winston Churchill come out through completely different companies.
That's because that's enough idea making a movie about the life of Winston Churchill or some of the times. Once you conceptualize it. Once you write a script, there's copyright in the script. Once you record it, like we're recording here today. There's copyright in this record. Once you write sheet music, there is copyright in the sheet music. There is copyright in someone playing the music. There's copyright in the recording of someone playing the music and so on. So that's what I mean by bundle of rights. There's layers of different copyright protection.
Infringement happens when there is a substantial copying of I part of the work, and it has to be material. But it doesn't have to be a lot. So I've heard people say in the past, well, if I only copy 10%. Then I shouldn't be in trouble. Should I? That's not true.
If you copy the most distinctive part of a copyright work, then you're infringing copyright. And a really good example of that here in Australia is Men At Work, who were sued for copying a part of the riff from Kookaburra sits in an Old Gum Tree in the flute part of the song. That's a very small part of the song. It's only a few bars. However, it's a substantial and identifiable part of the song, and that's why they got in trouble.
Another really obvious music version is Sweet Home Alabama. That's a very recognizable riff, and that riff is only, I think, four bars long, but you identified immediately and that's, what's meant by a substantial part.
Examples that I've seen recently, apart from music, are book covers. So we had a client recently who published a book a number of years ago. It's doing very well. They're very good at marketing. It has a bright yellow cover and very bold black writing. And it's about marketing. Somebody else recently, who they know, and who's in the same mastermind group is them, produced a similar book using the same colors, the same type setting, almost the same words. And couldn't understand why we wrote them a letter and said, we believe you are infringing copyright. If you put the two book covers next to each other, if you went past them quickly, you would think that they were the same book. And that's where there is quite an obvious copying happening. Obviously the person produced using the book most recently has changed their cover. They've changed the color. I've changed the type setting, all of that sort of thing. So the appearance of the cover by itself can be copyright protected, not just the, you know, the contents of the book.
In terms of website content. We do from time to time have clients come to us because their entire website content has been copied, and I don't mean the way it looks that's happened in the past as well, but the words. Recently we had a client come to us because the words on every page of their website were copied and then just reformatted with different pictures on a competitor's website. Again, very obvious infringement of copyright.
Copyright. What it gives you is protection against copying, publication, distribution or dissemination, performance, translation, and adaptation or amendment. So all of those things are protected if they're done without your permission. And that's on the commercial side. When we look at the moral side, so your right to be known as the author of the work, your rights are protected against someone else claiming authorship, or having your work denigrated in some way. Now, what that means is your work made seem worse than it should have been or not the quality it should have been.
And one of the primary example cases. For that is a piece of architecture. An architect was very upset because a new owner of a building he had designed changed the street frontage and he said that's denigrating my copyright. And he was actually found to be successful and they had to go and change the building back.
Another example here in Australia for architecture was a purchaser up in Port Macquarie. I'm sorry, not Port Macquarie, Port Douglas. They bid on a home at an auction. They were unsuccessful. So they went to the builder and said, could you build us the same home down the street? And the builder did, and the person who won the auction took them to court and the court made them change the home. They had to do significant renovations so that the appearance of the house from the street and the structure of it were quite different. Yeah. to protect the copyright of the original designer. So these things happen.
In terms of using copyright works. We’ve already gone through a few examples where people have misused copyright works. If you want to legitimately use copyright works. The best thing you can do is get permission. So doing a Google search and, you know, for an image and just using that image without doing any background checking is not a safe way to protect your business. If you want to use images on your website, or in blogs, or on slides, you need to check where they've come from and what permissions are attached.
So I've got a client at the moment who recently received a letter of demand for payment of compensation or payment of damages for using three pictures on their website that they didn't have a license for. And the license fee from that particular artist is $249 per image. But because it's in the U S they were requesting statutory damages, which are $750 us dollars, minimum per image. We're currently in negotiating that particular matter.
I've had another case here in Australia where a client owned a background website. So backgrounds for your computer. And had a bot that went around the internet and grabbed high resolution images and put them on the website. Now that's clearly an infringement of copyright, and my client said to the firm that sent him a letter. “Oh, it wasn't me. I'm not responsible. It's just a bot.”
Now that's admitting responsibility for copyright infringement. So we then had to negotiate the amount of damages he had to pay. But the risk there was, he was Australian based, the letter was from an Australian law firm. When we had to look at court filings that law firm on behalf of that artist had filed nine times in Australia and had continued to trial nine times. So there were more than just nine filings. One of their awards was $25,000. So that's obviously a risk to your business. You don't want to just copy and use images without checking the background.
There are image sites like Unsplash.com and Pixabay and a bunch of others. Who provide Licenses for use of images that are free. So you can use the images, but you don't have to pay a license fee. And the permissions attached to those images mean you can use them in commercial work. For example, for Unsplash, you can do anything you want with the image. You can use a corner of it. You can adapt it. You can make changes to it. You can enlarge it. You can combine it with other images. That's the licenses attached to Unsplash. So go and check licenses.
There is a Wiki site for some images. But your best bet, if you can't find a license, a license fee free provider is to go and ask permission before using images.
There are certain things can also, do around copyright, such as fair dealing. Fair dealing is an Australian concept. And I'll come to that in a bit more detail shortly. You can use copyright images if they're expired. Copyright lasts for (in Australia) 70 years after the life of the author or the creator.
So with the photographer, after they've passed away, there's another 70 years of license attached to that work. So works that were created back in the 1800s you can use. Paintings like the Mona Lisa no longer attract copyright, because the copyright has expired because the painting is so old. So you can use certain things if they're quite aged, but otherwise you should be checking what's available.
Once copyright work has moved into the public domain and that's what's happened with the Mona Lisa, for example, then you can also use it. And that's usually as a result of expiring or because somebody has released it to the public domain, which is the situation like Unsplash.
Fair use and fair dealing. Now fair dealing is the Australian concept. The requirement for fair dealing is that they use must be necessary, it must be limited, and it must not compete with the original work. You can use it, in fair dealing for, research or study, criticism or review, parody or satire, reporting the news, or providing professional advice. So for example, as a lawyer, I can go and find a copyright work and make a copy of that for the purpose of providing an advice to a client, but for no other purpose.
Fair use, which is the US concept is more around the way in which the copyright work is being used. So the purpose and the character of use is taken into consideration. That it, you would need to show that it is also used for, a not for profit, educational purpose, or a noncommercial nature. You have to look at the nature of the copyright work. So is it a substantial part or only a very small part? So for example, using a still from a movie is not a substantial part of the work. It's only a very small part. So that's the nature of it.
And the effect of the use on the market value of the copyright work. So making a copy of a expensive piece of artwork is obviously going to impact or have the potential to impact the market value. So they're very different concepts and a lot of people think fair use applies in Australia. It doesn't. You need to comply with fair dealing. If you want to rely on those defenses.
So something it's in the public domain is there because copyright has expired due to time or it's been released by the creator, or it's not been renewed. So in the US you can renew copyright in some circumstances. More in situations where it's owned by a company as opposed to an individual. Or if it's been released to creative commons or open source. So all those things that say they're open source software. That's been released for public use for everybody to use.
Something being available online and free to access is not public domain. It just means you can find it and it is publicly visible, but it doesn't meet the concept of public domain. So don't be tripped up by that.
In terms of protecting your business. What you can and do rather than copying and pasting is create the work yourself. If you create the work you own the copyright. If your employees, and they need to be employees, create the work, then the company owns the copyright or the employer owns the copyright.
If you outsource the work to a contractor, the contractor owns the copyright unless you have a written agreement saying that you own it. So you can’t transfer copyright, except in writing, you can't do it verbally. You can license the use of copyright, which means give permission to use a copyright work. You can give permission verbally, but you can't transfer ownership of copyright verbally. You have to do that in writing. So when you work with an outsourcer or a contractor, you must have a written agreement that shows copyright is being transferred to you on creation.
You can also purchase stock images, stock videos, stock music. There's a lot available. Or you can purchase public label rights content. So what that means is it's content that's made available that you can white label and put your details on.
In terms of protecting your content. The best thing you can do is monitor the use of your work. And ways to do that, in terms of writing, there's a number of software systems available, like Copyscape. Turnitin, writecheck, grammerly, allow you to find, some of those systems allow you to find other similar work on the internet. For images, tineye, and Google reverse image search will help you to find images on the internet. A good trick there is upload, you know, a funny cat video or a funny, you know, funny in an image of an animal onto the internet and then come back a couple of weeks later and see how far it's gone. With some of them you’d be quite surprised how far images can be shared and spread.
You can use, you should have a system of at least a friendly letter of demand that goes out to people from you if you believe that they're infringing your copyright work. And by friendly, I mean, you can let them know that you're the creator of the work. You're concerned that they might be, you know, you didn't give them permission and you're concerned that they're copying it and could they please remove it. That's a first polite step. Obviously after that, there's cease and desist letters and legal proceedings that you can do with the assistance of a lawyer.
And put some copyright conditions on your website. So terms of use on a website, you can use those to put provisions in about what people can do with the information available through your website. You can let people know that it is only for personal use, or if you want, if you're happy for them to share it publicly, or reprint it, that kind of thing.
Government websites are really good example. If you go and have a look at their copyright provisions. With a lot of government work, there is a relaxation of restrictions in terms of what you can do with the work and sharing it. Mainly because they want a lot of the information to be publicly available and to be disseminated publicly. But it doesn't mean you can use that information for your own commercial benefit. Only that you can share it.
So that it is very much worth checking websites for any copyright permissions they may have on them and certainly having them on your website.
In terms of registering copyright. It's not a requirement and there isn't a registrar in Australia, but there is a registrar in the US and that is for digital works only. And it's copyright.gov/eco/ and that's for digital works. So if you wanted to publish videos online, audio written works, eBooks, all of those sorts of things, you can actually register them in the US, and you register them in the US to protect them in the US. If you haven't registered them, you can't take protective action in the US, you can in Australia.
In Australia, if you're licensing work. So for example, you create something and you give someone else permission to use it in exchange for a license fee, you can register that on the PPSR, which is the personal property security register, and that just shows and protects your ownership of the work.
You can also go to copyright.com.au and have a look at their options for membership. So if you have work that you like to share a lot, and you want to be remunerated for it, or paid for it, particularly artists, this is good for, but also people who publish, you know, textbooks and things like that. You can register with copyright.com.au, and they will collect royalty payments on your behalf, and send you a royalty check about once a year. So that's worth investigating if you have a lot of copyright work out there.
In terms of a cease and desist letter, what we do is, before we would put one together, we would assess the risk. Automated letters from overseas are very low risk. They've been computer generated. They're set up as part of a system. The likelihood of someone taking legal action to enforce that letter, is probably very low. So I wouldn't worry so much about receiving one of those. Getty Images is a really good example.
One of the things you can do if you get a letter like that is to simply respond, acknowledge receipt, make no admissions and say that you'll respond fully once you've investigated the claims. And then go and get advice.
In terms of giving one [cease and desist letter]. Again, you want to look at what you are prepared to spend, to protect your rights. Because if you take it a long way, it's going to cost you money. Cease and desist letters, cost money. If the website's a US based website, you can lodge a DMCA complaint, which is a digital millennium copyright act complaint. You just need to look in the terms and conditions of the website. And you need to be very clear that you know what you want to achieve, because there are people can respond to those and defeat the actions you've taken. So you will need advice if you want to issue a cease and desist letter. A polite, “you've infringed my copyright, please stop”, you won't necessarily need advice on. And if you receive a letter, if you think it's high risk, you should get advice.
So how can we help, our details are on the slides with this presentation. If you would like to have a quick chat and see if we can help you please contact our office and check out our website, Onyx.Legal. Thanks for today.