The internet is often used to share material – pictures, text, ideas. Many issues of copyright arise out of the ease with which individuals can now share material. Here are some particular issues of copyright.
The design and layout of a website can be protected by copyright. This is a separate matter to copyright ownership of the various components of the site such as the text, images and sound. To maintain control over the future development and operation of a website, rights should be obtained from the website developer/designer. This could be an assignment of copyright or a licence to make changes to the site as required.
Using others’ material
When using content that you do not own, i.e. that you have not created yourself, the copyright owner should be identified and their permission sought. Potentially copyright protected material includes text, graphics, photographs, animations, film, music compositions, sound recordings, software and database material.
Once permission has been obtained the website owner or manager should keep records of each authorisation or licence to use a copyright protected work on the website. It is important to identify the scope of such a licence, including any limits on use and factors that relate to termination of the right to use others’ work.
Linking or framing
There are possible legal ramifications in linking to or framing a third party website. In the absence of specific permission, it is safest to link to the homepage of a third party website.
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.
Hypertext linking to pages deep within other sites, and the use of frames on a website, can raise issues for which you may be liable under copyright and trade practices legislation.
Case Example – Linking: Cooper v Universal Music Australia Pty Ltd  FCA 642
The provision of links from a website known as mp3s4free.net was sufficient for a finding of copyright infringement on the part of the website’s owner and operator, the ISPs (website hosts) and the director of the ISPs that hosted the website, for authorising the copying and communication of copyright-protected songs.
The website did not contain any music files but provided links to remote computers that allowed users to download copyright-protected music files. The court’s finding of infringement was subsequently upheld by the full Federal Court against all but the technician, who was found to be a mere employee and therefore not liable.
The court found that despite legal disclaimers on the site, by providing the links (and supporting a site which provided the links) the website owner and ISPs had “authorised” infringement because the links were for the purpose of downloading music files and nothing was done to prevent infringements occurring. The disclaimers were not seen to have any effect in terms of limiting liabilitybut rather were seen as evidence that the website owner was well aware of the likelihood of infringing content being made available via the links on the site.
Protecting your material
If you have material on your site that you wish to protect, i.e. to prevent others from copying, you should clearly attach notices stating:
- who owns copyright in the material;
- what the copyright owners permit and do not permit visitors to the site to do with this material; and
- who to contact for a copyright clearance in relation to any of the material on the site.
In addition to legal protections there are technical protection measures such as:
- advising your ISP of restrictions that you wish to place on access to protected material on your site;
- encrypting (using a technological means to prevent copying) or other copy control mechanisms.
Scanning and uploading images
Scanning an image to produce a digitised version involves making a reproduction, and uploading to a website or emailing the digital version involves communication of the image.
Both reproduction and communication of a copyright protected work are specific rights of the copyright owner as provided in the Copyright Act, and both require the permission of the copyright owner.
Downloading and manipulating images
Copying part of an image or photograph from the internet may still be infringing copyright if you copy what is considered a substantial or important part of the image or photograph. What is important to consider is the image itself and not the website or page where it was found.
Altering or adding to a digital image to create a new image will require the permission of the copyright owner if an important part of the first image is recognisable in the new image. Additionally, you may be in breach of the creator’s moral rights if the work is not properly attributed to them or you alter the work in a prejudicial manner.
Downloading music or films
Music, film and television programs can be downloaded from the internet in many ways: from a website, bulletin board, email, blog, or a file sharing or peer-to-peer (p2p) network (e.g. Kazaa, BitTorrent or LimeWire). Copyright infringement occurs if the copyright owner has not given permission for the song or film to be distributed freely on the internet (unless one of the limited exceptions to copyright infringement applies. Permission has usually not been granted and infringement may therefore occur if music or film is downloaded from a p2p network.
Legitimate Australian online sites or stores that authorise access to music, TV shows and films do exist (e.g. i-view, ninemsn music, iTunes and bigpondmusic.com). Such sites enable content to be downloaded with the permission of the copyright owners. When you download content from these sites (usually for a fee) the copyright owner grants you permission (licence) to use the digital music file in a particular way. The terms of the licence will usually outline how many times you can copy or burn the song to a CD or computer and for what purpose you can do so.
If you copy or share the content in a manner that is different to the terms of the licence then you may be infringing copyright. You should carefully consider the terms of the licence prior to purchasing because different sites can have different rules regarding the way you can use the content they offer.
Sharing / distributing music online
Copying and sharing digital content is relatively quick and easy. For example, a Microsoft’s Windows Media Player allows users to “rip” (copy or reproduce) a song from a CD by converting it into an MP3 file (or other file format) on the user’s personal computer. The music file is then easily shared by email; downloaded to a portable digital music player (e.g. iPod); posted to a website/facebook page/blog; or made available on a p2p network.
However, if you do any of these things without the permission of the song’s copyright owner, you will be infringing copyright. Usually the licence accompanying your purchased music will outline the details of the permission granted by the copyright owner.
Case Example – File Sharing: Universal Music Australia Pty Ltd v Sharman License Holdings
The case of Universal Music Australia Pty Ltd v Sharman License Holdings Ltd  FCA 1587 was high-profile Australian litigation involving music labels suing the developers and distributors (collectively referred to as “the Sharman parties”) of software that enabled access to the Kazaa p2p network. The software, which was made available for free, enabled users to upload and download digital files (such as MP3s). However, unlike earlier p2p networks (such as Napster) the Kazaa network did not require operation through centralised servers, nor physical involvement in the transmission of the files.
The essence of the litigation concerned the responsibility of the developers and distributors for authorising copyright infringement by providing the means by which users were able to infringe copyright by sharing copyright-protected works without permission, i.e. the provision of the software authorising the users to infringe copyright. Based on what the Sharman parties knew was occurring on the network, as well as an ability to put in place filters to reduce the amount of infringing traffic that was occurring, the court decided there had been authorisation. An appeal was heard, but the parties settled before the Full Federal Court handed down a decision. Part of the settlement required substantial changes to the Kazaa network.
Recently the High Court in Roadshow Films Pty Ltd v iiNet Ltd  HCA 16 dealt with another file-sharing case. In the iiNet case the respondent was an internet service provided ISP, alleged by a number of copyright owners to be authorising the copyright infringement of films facilitated by P2P file-sharing software. The ISP had not refused access by terminating the relationship if access had been used unlawfully – the copyright owners claimed that that ISP had “countenanced” the infringing activity. The argument was unsuccessful because the court found that the authoriser (in this case the ISP) must have power to prevent the infringements.
Case Example – YouTube
A US case ruled that the YouTube website was not liable for copyright infringing material that had been posted on the site. The court held that YouTube was only under a duty to take action to remove infringing material in the event that it has knowledge of specific infringing material.
Equivalent Australian legislation (i.e. the safe harbour provisions of the Copyright Act) means that copyright owners should promptly inform any website if it contains any material that infringes copyright.
“Podcasting” allows users to subscribe to and download digital audio files onto their computers and portable digital music players. If you wish to podcast material (i.e. make it available online) so that others can download it, then the audio content you use must not infringe the copyright owned by someone else. Infringement will occur if you use audio content that you do not own the copyright for or clear permission to use, for example, including in your podcast a song ripped from a CD without permission from the copyright owner of the track.
If you download podcasts provided by others that infringe copyright then you will also be technically infringing copyright. Amateur podcasts that contain commercial audio content are more likely to infringe copyright than podcasts from well-known broadcasters such as the ABC. It can be difficult to determine whether a podcast infringes copyright. However, the risk of personally incurringliability for downloading a podcast that contains infringing content may not be great. It is likely that the risk increases if you re-publish in a podcast infringing content.