Copyright issues: images and music sharing
Scanning and uploading images
Scanning an image to create a digital version constitutes making a reproduction. Uploading the digital image to a website or emailing it constitutes communicating the image. Reproducing and communicating a copyright-protected work are specific rights of the copyright owner as provided in the Copyright Act. If you wish to reproduce or communicate a copyright-protected work, you need the copyright owner’s permission.
Downloading and manipulating images
Copying part of an image from the internet may still infringe copyright if you copy a substantial or important part of the image. It is important to consider the image itself, not the website or page where it was found.
If you wish to alter or add to a digital image to create a new image, you need to obtain the copyright owner’s permission.
Additionally, you may be in breach of the creator’s moral rights if the work is not properly attributed to the copyright owner, or if you alter the work in a manner that could negatively affect the creator’s reputation or honour (e.g. distorting the work or using it in a way that is contrary to the creator’s ethics).
Downloading and streaming music, films and television programs
Music, films and television programs can be accessed via the internet by being downloaded from a website, email, blog, or a file-sharing or peer-to-peer network (e.g. BitTorrent and LimeWire). Downloaded data is generally only able to be played once the complete file has been received. Unlike streamed content, data that has been downloaded can be accessed multiple times once the transmission is complete.
Streaming (either audio or video content) from a web server involves the delivery of data from the server to a device that receives and plays the data while the transmission is in progress (i.e. the user can hear and see the content before the entire file has been transmitted). Streamed content usually contains technology protection that prevents the data from being stored permanently.
When does downloading and streaming breach copyright?
Copyright infringement occurs if the copyright owner has not given permission for the song or film to be distributed freely on the internet.
Permission has usually not been granted and infringement may therefore occur if music or a film is downloaded from a peer-to-peer network.
Legitimate online websites or stores that authorise access to music, television shows and films are rapidly becoming more commonly used (e.g. ABC iview, TenPlay, Netflix, Spotify, Google Play, iTunes, Apple Music and SoundCloud). Such websites enable content to be downloaded or streamed with the permission of the copyright owners. When you obtain content from these sites (sometimes for a fee) the copyright owner grants you permission (i.e. a licence) to use the digital content in a particular way. 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 before purchasing, particularly if you intend to share the content you have downloaded.
Music Rights Australia is an organisation that protects the creative interests of artists and provides information about legal music services and how to legally access and use digital music services. See www.musicrights.com.au.
Copying and sharing music online
Copying and sharing digital content, such as music files, is relatively quick and easy. However, if you do copy and share music without the copyright owner’s permission, you are infringing copyright. Usually, the licence that accompanies the music you purchase outlines the details of what the copyright owner permits purchasers to do with the music file.
Case examples: File sharing
|Universal Music Australia PtyLtd v Sharman License Holdings Ltd  FCA 1242
The case of Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) FCA 1242 involved a music label (Universal Music Australia) suing the developers and distributors (collectively referred to as ‘the Sharman parties’) of software that enabled access to Kazaa, a peer-to-peer file-sharing application. The software, which was free, enabled users to upload and download digital files (e.g. MP3 music files, videos and aps) to Kazaa.
The essence of the litigation was the responsibility of the developers and distributors for authorising copyright infringement by providing the means (i.e. the software) by which users were able to infringe copyright by sharing copyright-protected works without permission. Based on what the Sharman parties knew was occurring on Kazaa, and their ability to put in place filters to reduce the amount of copyright infringing 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 be made to Kazaa.
|Roadshow Films Pty Ltd v iiNet Ltd  HCA 16
The High Court has dealt with another file-sharing case in Roadshow Films Pty Ltd v iiNet Ltd  HCA 16. The respondent, iiNet, is an ISP. A number of copyright owners alleged that iiNet was authorising the copyright infringement of films facilitated by peer-to-peer file-sharing software. The ISP had not refused access by terminating the relationship if access had been used unlawfully. Thus, 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.
|Dallas Buyers Club LLC v iiNet Ltd  FCA 317 and Dallas Buyers Club LLC v iiNet Ltd (No 3)  FCA 422
These cases relate to an application for pre-litigation discovery by the copyright owner of the Dallas Buyers Club film, seeking identification of carious end users who may have downloaded/shared the movie in breach of copyright.
Importantly, the Federal Court granted an order that various ISPs had to provide identification details of certain end users for the purpose of prospective litigation by the copyright holder. The cases did not decide whether or not the acts of the ISPs or the end users did breach copyright but it demonstrates that user details can be obtained by copyright holders from ISPs where a copyright breach is strongly suspected.
In the United States, a court ruled that YouTube was not liable for the copyright-infringing material posted on its website. The court ruled that YouTube only has a duty to remove infringing material when it has knowledge of specific infringing material. Equivalent Australian legislation (i.e. the safe harbour provisions of the Copyright Act) mean that copyright owners should promptly inform any website if it contains material that infringes copyright.
‘Podcasting’ means to deliver a digital audio file (e.g. a radio program) over the internet as a file to be stored and played on a computer or MP3 player.
If you wish to create a podcast (i.e. make audio material available online for others to download), then the content you use must not infringe copyright. Infringement occurs if you use audio content that you do not own the copyright for, and do not get permission to use.
If you download podcasts provided by others that infringe copyright, you also infringe copyright. Amateur podcasts that contain commercial audio content are more likely to infringe copyright than podcasts from well-known broadcasters (e.g. the ABC). It can be difficult to determine whether a podcast infringes copyright.
Webcasting (also called online simulcasting) is distributing media content (e.g. a video of an event) over the internet using streaming technology to distribute a single content source to many simultaneous listeners or viewers. A webcast may be distributed either live or on demand.
Webcasting differs from podcasting in that webcasting refers to live streaming while podcasting refers to media files placed on the internet.
|Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd  FCA 93
The full Federal Court confirmed that radio program webcasts are not ‘broadcasts’. The court stated that:
a broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform. Thus, the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet.
Radio broadcasters need to obtain separate licences from – and pay additional royalties to – copyright owners, to transmit radio programs over the internet.
|National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd  FCAFC 59
The full Federal Court found in favour of the Australian Football League (AFL), the National Rugby League partnership (NRL) and Telstra (together, the ‘rights holders’) in the Optus TV Now Service (‘the Service’) proceedings.
The court held that it was Optus (or alternatively, Optus and the subscriber) that caused recordings of free-to-air television programs to be made via the Service, thereby infringing the copyright holders’ rights. The court found that Optus could not rely on the ‘private and domestic’ use exception under section 111 of the Copyright Act.
What about Facebook and Twitter posts, or images uploaded to Instagram or Pinterest?
Anyone who posts on social media usually owns copyright of their own posts, provided the content satisfies originality requirements for copyright protection. However, a short post (e.g. ‘I like this restaurant’) is not likely to attract any copyright protection.
If you operate a website, and someone else posts copyright-infringing material (e.g. someone else’s photo or music) to your site, you are likely to be liable for copyright infringement, even though you did not post the infringing material yourself. For this reason, most sites usually contain terms and conditions of use that require users to not infringe copyright. It is a good idea to respond quickly to complaints about infringing content on a website that you operate.
The law treats social media posts like any other form of communication. Therefore, using social media can involve other legal considerations besides copyright, such as defamation. In short, the author of a social media post is responsible for its content, so it is important to consider whether a post infringes the legal rights of other people.