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The following Frequently Asked Questions (FAQ) were developed to answer some common questions about copyright in digital and Internet media. Legal expertise for the answers to these questions was provided by Dr Anne Fitzgerald, co-editor of Going Digital: Legal issues for e-commerce, multimedia and the Internet (2000), and author of Intellectual Property (2002). QANTM
gratefully acknowledges the funding support for the development
of this FAQ provided by the Department of Education, Science and
Training, and Arts Queensland. Can I put a scanned image on a web site that I create? What if I want to use text, code or graphics,photos or logos from someone else's web site? What are the basic principles of Australian copyright law? Do they still apply on the internet? Does copyright apply to email? How does copyright law affect music downloads? Why bother to comply with copyright law? Aren't the chances of getting caught very small? How do I go about getting permission to use copyright works? Where can I get more information about copyright?
IF
I SCAN A PHOTOGRAPH OR GRAPHIC INTO PHOTOSHOP (OR EQUIVALENT),
WHO OWNS THE COPYRIGHT IN THE SCANNED IMAGE? You do not obtain copyright in the scanned image just by scanning from the original photo or graphic. When you scan a photo or image you are making a digital copy of the original. To obtain copyright you need to use more skill and effort than is involved in simply making an exact copy of an existing image even if you are transforming a hard copy into a digital one. In fact, by doing the scanning you could be infringing the copyright owner's rights. A key right of copyright holders is the right to make copies and to stop others copying without permission. This means that you will need the owner's permission to copy photos and graphics that are protected by copyright. Permission to use copyright material (that is, a licence) can be given verbally and does not need to be in writing unless it is an exclusive licence in which case it also needs to be in writing and signed.
CAN I PUT A SCANNED IMAGE ON A WEB SITE THAT I CREATE? Before putting the scanned image on your web site you need to ask: does someone else own copyright in the image? Remember, (from the answer to the previous question) you don't get copyright just by scanning the image, so you need to work out who, if anyone, is the owner of copyright. All kinds of original visual works are protected by copyright, including drawings, paintings, photographs, prints, films, videos and multimedia games. The rights of the copyright owner include the right to:
When we say that the copyright owner has certain rights, we mean that he or she can prevent others from doing certain things like making copies, putting the work on a website or emailing it to somebody. Since you do not own copyright in the scanned image, you will have to get the copyright owner's permission (also known as a licence)before you copy it, put it on your website or transmit it in electronic form. If the photo or graphic you are scanning is very old, copyright may have expired and you may be able to use it freely because it is now "in the public domain." Copyright in photographs and films expires 50 years after they were first published. Copyright in paintings, drawings and prints lasts for 50 years after the death of the artist. If you are sure that the work is in the public domain, you can scan it and put it on your web site without requiring authorisation.
WHAT IF I MANIPULATE THE DIGITAL IMAGE SO THAT IT IS UNRECOGNISABLE? DOES THAT OVERCOME ANY PROBLEMS WITH COPYRIGHT LAW? If you manipulate the digital image so that you create an entirely new one you will own copyright in the image which you have produced. The image will be protected by copyright as an artistic work and you will have all the usual rights that apply to that kind of work. Now, you can control your work by making others ask for your permission if they want to copy it or use it, eg. on their web site. This is a good example of how to avoid problems with copyright. If you create your own original work you don't have to be concerned about having to get somebody else's permission or clearance. In fact, this is how copyright is meant to work. It encourages people to be creative by giving the person who creates the new work the rights to control its use. If you are producing a new image from an existing one you need to be careful that the new work does not look like it was copied from the original. If someone held the two images up side by side, it should not be obvious that the original was used to create the new one. Even including a small part of the original image in your new work could still infringe copyright if the original is well known and the part copied is easily recognisable. If you want to base a new image on an existing one, you also need to think about the interests of the creator of the original image. Under the moral rights system, which will soon become part of Australian copyright law, creators will be able to object to distortions, alterations and uses of their works which could reasonably be regarded as detracting from their professional standing.
WHAT IF I WANT TO USE TEXT, CODE OR GRAPHICS, PHOTOS OR LOGOS FROM SOMEONE ELSE'S WEB SITE? Text, code, graphics, photos and logos are all protected by copyright. This means that the copyright owner has the right to stop anyone else copying them or putting them on a web site where they can be accessed by the public. So, the usual rule applies: if you want to copy any of these from another web site and use them on yours, you need to obtain permission. The best thing to do is to contact the web site administrator, tell him or her exactly what you want to use, why and for how long and ask if they will authorise it. Be careful about copying logos. As well as being protected by copyright, logos can be protected as trademarks and business names. For example, the design of the logo might also have been registered as a trademark. Any words included in or associated with the logo could be protected as a registered business name, a registered trademark or a domain name. If you copy these you could be liable for trademark infringement or be in breach of the fair trading laws (or trade practices laws if you are working for a company). You can search to see what words and images are registered as trademarks at www.ipaustralia.gov.au and you can search for registered business names at www.asic.gov.au. A register of Australian domain names is at www.ina.com.au. Even if you are not copying text, graphics etc directly from another web site, try to avoid copying the look and feel of another site. If you produce a site which is so similar to the original one that customers would be likely to wrongly believe that there is some commercial association between the two sites, you could be infringing the fair trading laws.
I HAVE HEARD THAT I CAN USE UP TO 10 PER CENT OF ANY COPYRIGHT WORK WITHOUT NEEDING PERMISSION. IS THIS TRUE? The 10 per cent rule is one of the great urban myths of copyright folklore. It is important to have a fairly good understanding of how copyright law applies to your work. The borderline between what you can copy and what you can't is often fuzzy. If you have any doubts you should always ask. You could contact one of the organizations listed at the back of this booklet or find a solicitor who specialises in intellectual property law (the organisations listed can recommend someone you can talk to). Basically, what you can do for free(without getting permission and without paying a royalty) are the following:
"Fair dealing" (or "fair use") means that in some situations, it is regarded as reasonable (or fair) to copy or use the whole or part of a copyright work without having to obtain the owner's permission and without being required to pay a royalty.
There are also several situations where you can go ahead and copy a work without getting permission beforehand, but you still need to pay a royalty to the copyright owner. These include -
WHAT ARE THE BASIC PRINCIPLES OF AUSTRALIAN COPYRIGHT LAW? DO THEY STILL APPLY ON THE INTERNET? Copyright law gives rights to the creators of certain kinds of original creative works. The range of materials which are protected by copyright is huge: it includes all kinds of visual works, musical works, films and video, multimedia works and computer software. To obtain copyright protection, the work must not be a copy of an earlier one and it must be stored or recorded in some way, eg., on paper, video tape, a CD ROM or a computer disk. The copyright owner has several rights. The most important ones are the rights to copy, to transmit in electronic form and to put material on a web site. The owner of copyright can stop others doing any of those things without the owner's permission. For example, where someone is making unauthorised (or pirate) copies of a work, the copyright owner can stop them from making further copies. There is a basic rule in copyright law: ideas are not protected but the way they are expressed is. For example, an idea for a computer game is not protected by copyright if you have it in your head or talk about it. For copyright to apply, you have to put it into a medium, which could be drawings or illustrations, a written description or software code. There is no need to register to obtain copyright protection in Australia. It comes into existence as soon as the work is produced and recorded in some medium. However, it is a good idea to let others know that you have copyright by putting a copyright notice on the work in the following form: © [your name] [year]. Yes, copyright still applies on the internet. When the internet was first developing there was a lot of uncertainty about exactly how copyright applied to digital technology and whether it applied at all on the internet. However, recent changes to copyright law have made it clear that copyright owners can control the use of their material on the internet. Under the digital copyright laws, copyright owners have rights over:
UNDER COPYRIGHT LAW, WHO OWNS OR HOLDS COPYRIGHT? DOES IT MAKE ANY DIFFERENCE IF THE CREATOR IS GETTING PAID TO PRODUCE THE WORK? HOW CAN OWNERSHIP BE TRANSFERRED? The basic rule of copyright ownership is that the person who produces the work is the first owner of copyright. This means that where material is produced by a contractor (not an employee), the contractor will continue to own copyright, unless there is an agreement in writing which transfers copyright to the person who is paying for the work. There are some important exceptions to the basic rule which need to be kept in mind:
For copyright to be transferred from the owner to another person, there must be a statement in writing which makes that clear and it must be signed by the original owner. Permission to use copyright material (that is, a licence) can be given verbally and does not need to be in writing unless it is an exclusive licence in which case it also needs to be in writing and signed.
DOES COPYRIGHT APPLY TO EMAIL? Yes, copyright applies to email messages. The text part of the message will be protected as a literary work and the author will have the rights to prevent others from copying it, publishing it, transmitting it in electronic form or putting it on an internet site. This means that, in theory, you would need the permission of the author of the message in order to be able to copy it or to forward it by email to others. In practice though, it is regarded as such a well established part of internet etiquette that it would be implied that the author would agree to it being forwarded on to other email users. This is so where a message is being forwarded to a relatively small number of users for their information. However, before posting another's email message to a list or putting it onto an internet site, you should obtain the consent of its author. In forwarding email messages to lists or putting them on an internet site where others can access them, be careful to ensure that they do not contain material which could defame another person or an organisation. Defamation means posting information about someone/something that may damage their reputation, even if you're confident it is true.
HOW DOES COPYRIGHT LAW AFFECT MUSIC DOWNLOADS? Sound recordings are protected by copyright, which is usually owned by the recording company, although in some cases it is owned by the recording artist. The owner of copyright in a sound recording has the rights over:
If you make an MP3 file from a CD this involves copying the sound recording, which will infringe the recording company's copyright if it is done without permission. If you put an MP3 file of a sound recording onto a web site without the recording company's permission you will infringe their right to make the record available for access on the internet. If you electronically transmit an MP3 file of a sound recording without permission, you will be infringing the recording company's rights to control electronic transmission. There are many cases where recording artists and companies release their music on the internet and give permission for users to copy it and make MP3 files. However, although millions of people worldwide are making MP3 files of sound recordings, and uploading and downloading them from web sites, the practice is not legal unless it is authorised by the copyright owner. The large recording companies are unlikely to pursue individuals but have been taking action against people who have set up large MP3 sites without permission and the ISPs which host them. For example, the recording companies which own copyright in thousands of CDs were able to stop MP3.com copying the CDs into a huge database that CD owners could access to listen to that album via an internet computer without having to insert the original disk.
WHY BOTHER TO COMPLY WITH COPYRIGHT LAW? AREN'T THE CHANCES OF GETTING CAUGHT VERY SMALL? In many cases, there is little chance of getting caught and the nature of the use is so trivial that it is extremely unlikely that the copyright owner will bother doing anything about it, even if they do find out about the copying. However, the nature of the internet means it is now much easier to detect infringement. And the consequences of illegal copying can be awesome. Large international companies which produce music recordings, films, games and software employ agents around the world to find those who are infringing their copyright and do not hesitate to take them to court. There are numerous examples of cases where major companies have demanded that individuals and small companies remove infringing material from their sites or have taken legal action to force them to do so. Being on the receiving end of legal proceedings brought by a major international company can be a very unpleasant and expensive exercise which would be a major setback for any small or medium company, let alone an individual. Some of the more serious copyright infringements are also criminal offences which can be punishable by large fines and imprisonment and leave you with a criminal record. In any commercial project - whether you are working as an employee or a contractor - you need to be able to give a guarantee that what you have produced does not infringe copyright and that you have obtained all the necessary clearances and permission. Inclusion of infringing material or not caring whether it infringes or not can cause major problems for you and also your employer or the company that has commissioned you to produce the work.
HOW DO I GO ABOUT GETTING PERMISSION TO USE COPYRIGHT WORKS? You have to find the copyright owner or the organisation which manages copyright on behalf of the owner. There are several organisations called collecting societies which licence the use of particular kinds of copyright material. They administer copyright for the creators of the material in situations where it would be virtually impossible for the creator to enforce copyright him or herself. Collecting societies give licences for the use of copyright material and collect licence fees or royalties which they distribute back to the creator. Who to approach for permission depends on the type of material you want to use:
Remember, when you are requesting permission to use copyright material, be specific about what you want to use and describe in precise detail the part that you want to include. Also explain what you are using it for (eg education, advertising, multimedia game), where you will be distributing your product and the number of copies you propose to make. If a commercial product, state the estimated selling price of your product and its title. You should indicate how you will be using the material and give the contact details of your publisher.
WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT? Organisations The collecting societies listed above can provide information about copyright licensing in their particular area of specialisation. The following organisations can provide more detailed information about a range of copyright issues:
Arts Law Centre of Queensland Arts
Law Centre of Australia Australian
Copyright Council Books
Going Digital 2000: Legal issues for e-commerce, multimedia
and the internet, by Anne Fitzgerald, Brian Fitzgerald, Cristina
Cifuentes and Peter Cook (eds). Published by Prospect Media, in
association with QANTM Australia CMC, 2000. |
