1. What is copyright?
Copyright protects from unauthorised reproduction or adaptation original creations such as books, computer programs, scripts, paintings, sculptures, drawings, photographs, music, film, video, broadcasts and the choreography of a performance. The copyright owner has the exclusive right to copy, publish, perform, broadcast, adapt (for example, a screenplay from a novel), sell, license and import copyright protected creations. Generally the first owner of copyright in a work is the person who created it. An assignment of copyright is only effective if it is in writing and signed by the copyright owner.
See Copyright fact sheet in relation to when copyright arises, the term of copyright protection and penalties applying to copyright breach.
The Internet raises the following copyright issues.
2. Temporary reproductions, linking, framing and proxy caching
Surfing the internet causes reproductions of a web page to be made in the cache of a personal computer and in the Internet Service Provider (ISP) proxy server cache. A temporary reproduction of a work that occurs as part of a technical process of making or receiving an electronic communication is not an infringement of copyright provided the making of the communication is not an infringement of copyright. This exception covers internet browsing and certain types of caching (eg by a software browser on a user PC). It is unclear whether this exception applies to hypertext linking, framing, or caching by a proxy server.(1)
A proxy server cache stores a reproduction of frequently visited pages. While the temporary reproduction for the purposes of receiving or sending an electronic communication is permitted, this is unlikely to extend to the storage of these pages. As the legal issues in the area of proxy caching and copyright are not settled, it is good business practice to seek authorisation before caching web pages using a proxy server.
3. Copyright in multimedia
Typical website content will include different copyright works such as original literature (including computer programs), dramatic, musical, artistic works, sound recordings and films. Where a variety of different works are incorporated in a multimedia presentation (eg graphic, audio, musical and literary works and computer programs), copyright in the presentation will generally be protected under one or more of the existing copyright categories such as computer programs, compilations or cinematograph films.
4. Copyright licence
For most material used on the internet, permission to digitise copyright protected material is unlikely to have been obtained or included in any licence agreement relating to that material. A copyright owner who places material on the internet without notifying the user of any rights management information (RMI) or use restrictions is likely to be giving an implied licence to a internet surfer to download or print the material. Where RMI or use restrictions are stated, you should comply with those requirements to avoid breaching the copyright of the owner.
5. What are the copyrights?
In the Internet context, copyright owners have an exclusive right:
* to reproduce or adapt or authorise another to reproduce or adapt their copyright material on to or from a website; and
* to communicate to the public their copyright material including any literary, dramatic, musical, and artistic works, sound recordings, films and broadcasts.(2)
"Communication to the public" includes conventional broadcast and cable diffusion and any form of distribution over communications networks including the Internet. The right only covers communication in the electronic domain and does not create an exclusive right of communication in the tangible print environment.
6. No copyright in a URL
Copyright does not extend to a URL.(3)
7. Substantial part of original work must be reproduced without authorisation
The internet facilitates unauthorised access to, duplication, storage, transmission and concealing of copyright works. Protected material may be scanned into a file server connected to the internet, uploaded onto the internet via a network, downloaded into a hard drive, sent by email or printed to hard copy. Infringement of the exclusive right to reproduce, adapt or communicate to the public will occur in each case if the material is an original work and a substantial part is reproduced without authority.
8. No infringement
Copyright infringement will not occur if:
* the unauthorised use of the work fits within the exceptions permitted under the copyright legislation (see Copyright fact sheet), or
* a licence from the copyright owner can be implied in the circumstances.
9. Copyright management on a website
(a) Unless copyright in your website is assigned to the customer in writing, copyright will normally be owned by the developer provided the developer is not an employee of the customer acting within the scope of her or his employment at the time when the website was developed. See Website Development Agreement and Ownership of Content.
(b) Although not required for copyright protection, you should display the following on copyright material created by you:
* copyright symbol ©, or the word "Copyright";
* the name of the author;
* year of first publication; and
* include any terms of use.
For example, © Oz NetLaw, 2000. The © symbol gives notice to the public of your claim to copyright ownership and gives the work reciprocal protection under the laws of other countries who are signatories to the Universal Copyright Convention. A website owner should attempt to identify the ownership of copyright for all third party content used on the website including text, graphics, photographs, animations, film, music compositions, sound recordings, software and database material. The website owner should then obtain and keep records of each authorisation or licence to use a copyright protected work on the website. Identify the scope of such a licence including limits on use and assignment of copyright and termination events.
(c) To maintain control over the future development and operation of your website, you should obtain copyright rights from the website developer. See Website Development Agreement.
(d) Before linking to or framing a third party website, review that website for any prohibition on linking or framing, and if permitted subject to conditions, adhere to those conditions.
(e) Hypertext linking to or framing a third party website that includes copyright infringing material may constitute an endorsement or republication of the infringing material and expose the website owner to liability under the copyright legislation.
(f) Hypertext linking to pages deep within other sites and the use of frames on a website can raise copyright issues for which you may be liable under copyright and trade practices legislation. See Consumer Protection and Misleading and Deceptive Conduct.
(g) The website and any screens which appear prior to downloading should include disclaimers expressly setting out the extent to which any software or other material downloaded from your site can be copied or used.
(h) Instruct your Internet Service Provider (ISP) of any restrictions you wish to place on access to protected material on your website.
(i) Make protected material accessible only upon payment of a fee or acceptance of contractual terms of use. Encrypt the material so only authorised users have access.
(j) Invest in technology that allows the copyright material to be used in accordance with RMI. This means the work becomes protected by contract rather than copyright.
(k) Set up procedures to ensure you do not accidentally copy or place a third party*s copyright material on your website when your site is updated.
(l) You will be able to protect and control the use of your website by including in the terms and conditions of your website:
* copyright protection provisions, for example, that third parties can only use or copy content from your website with permission; and
* a provision controlling how other websites can link to your web pages and content. For example, other sites are only allowed to link to your home page.
See Terms and Conditions of Website Use.
10. Potential copyright problems with interactive websites
Where users are permitted to upload files or content to your website, you can reduce the associated legal risk of copyright infringement as follows:
(a) Specify in the terms and conditions of website use:
* you are authorised to reproduce, use and remove the uploaded files, content or works without permission;
* you are not responsible for determining content uploaded to the website;
* people posting material to the site indemnify you for any loss arising from copyright infringement; and
* non-liability to readers for copyright infringement.
(b) Implement procedures to remove infringing material upon notification and consider implementing an audit policy to review and remove infringing material. See Terms and Conditions of Website Use.
An ISP or website host will breach copyright if they are aware of infringing material on a website (through an audit) or have been notified and fail to remove the material. See Copyright fact sheet and Conducting an ISP Business.
Other relevant Articles on this site:
Other ISP liability
Databases
Terms and conditions of website
Ownership of content
Other relevant Fact Sheets:
Consumer Protection
Copyright
Database Protection
Misleading and Deceptive Conduct
End Notes
(1) Copyright Act 1968 sections 43A, 111A
(2) Copyright Act 1968 section 31(1)(a)(iv)
(3) Exxon Corp v Exxon Insurance Ltd [1982] 1 Ch 119