Copyright Issues
Website design
Various components of a website can be protected by copyright: the design and layout, the text, images, video and sound, and the underlying source code.
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 and should be specifically dealt with in a written agreement.
Apps
Like a website, an app can have a number of components that can be protected by copyright (e.g. text, music). Copyright protects the way an app is expressed; it protects the expression of the specific set of instructions but not the function of the software, nor the underlying ideas.
Computer programs
Computer programs are protected by the Copyright Act 1968 (Cth) (‘Copyright Act’). The Act defines ‘computer program’ as a set of instructions; the Act also includes a computer program in the definition of a ‘literary work’.
Using others’ material
When using content that you do not own (i.e. that you have not created yourself), you should identify the copyright owner and ask their permission to use their content. In some cases, copyright collecting societies can grant a licence to use the material.
Content that can be protected by copyright includes text, graphics, photographs, animations, film, music, sound recordings, software and database material.
Sometimes, you do not need to obtain permission to use others’ work; for instance when:
- copyright has expired;
- an exception applies (i.e. fair dealing);
- you are not using a substantial part of the work; or
- permission has already been granted by the copyright owner.
It is also advisable to get the creator of copyright the material (who may be different to the copyright owner) to consent to the way you want to use their material to avoid infringing their moral rights.
Linking or ‘framing’
Overview
There are possible legal ramifications in linking to or ‘framing’ a third-party website.
Surface linking is where the user clicks on a link and is taken to the homepage of the linked website. This is generally regarded as the safest form of linking. Deep linking is where the user is transferred directly to a sub-page of the linked website and bypasses the home page.
A frame is a part of a webpage that displays content from another website, and has the ability to load content independently.
It is safest to link to the homepage of a third-party website because the legal implications of providing links are not settled.
Deep linking to pages within other websites and using frames can raise issues for which you may be liable under copyright and consumer protection law. This is because linking to or framing a third-party website that includes copyright-infringing or misleading material may constitute an endorsement or re-publication of the infringing material, and expose the website owner to liability.
Case example: LinkingCooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 At the heart of Cooper v Universal Music Australia is website A, which provided links to website B (mp3s4free.net). Website B allowed users to download, copy and otherwise communicate copyright-protected music files. Website A’s owner, operator and website host were found guilty of infringing copyright as they had authorised the copying and communication of copyright-protected songs. The court found that despite legal disclaimers on website A, by providing the links (and supporting a site that provided the links) the website owner and hosts 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 limiting liability but 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. The court’s finding of copyright infringement was subsequently upheld by the full Federal Court against everyone but the technician, who was found to be a mere employee and therefore not liable. An application for special leave to appeal to the High Court on this matter was refused in 2007. This case has been applied by the High Court in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. The iiNet case is discussed in ‘Case example: file sharing’, below. |
Case example: Sponsored linksGoogle Inc v ACCC [2013] HCA 1 Google publishes sponsored links that are paid advertisements. These links are produced through the use of keywords provided by the advertiser. Some advertisers use competitors’ names as keywords. It was alleged by the Australian Competition and Consumer Commission (ACCC) that Google had engaged in misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (‘TP Act’) – now superseded by the Competition and Consumer Act 2010 (Cth) (‘C&C Act’) – by displaying an advertiser’s URL as a sponsored link to the name of a competitor. (This conduct occurred between 2005 and 2008; the High Court considered sections 52 and 85 of the TP Act. Equivalent provisions are now contained in the C&C Act.) The High Court found that ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers and would not have concluded that Google adopted or endorsed them. Thus, Google was found not to have engaged in misleading or deceptive conduct. |
Protecting your material
If you have material on your website that you wish to protect (i.e. to prevent others from copying), you should clearly state on your website:
- who owns copyright;
- what the copyright owners do and do not permit site users to do with this material; and
- who to contact for copyright clearance for any material on the site.
In addition to legal protections, there are technical protection measures you can take such as:
- advising your ISP of restrictions that you wish to place on access to protected material on your site;
- making protected material accessible only on payment of a fee or acceptance of contractual terms of use.
- This can often be achieved using rights-management information technology (which inserts information that identifies the work, the owner and the terms of use for the work). The Copyright Act makes it unlawful to alter or remove rights-management information or to deal with technological protection measures without permission; and/or
- encrypting (using a technological means to prevent copying) or using other copy control mechanisms.
Page last updated 01/12/2021