Copyright issues
For more information, see Chapter 7.6: Copyright.
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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.
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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.
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Computer programs are protected by the Copyright Act. The Act defines a ‘computer program’ as a set of instructions; the Act also includes a computer program in the definition of a ‘literary work’.
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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 (see Chapter 7.6: Copyright).
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 in the material (who may be different from the copyright owner) to consent to the way you want to use their material to avoid infringing their moral rights. For more information about moral rights, see ‘Moral rights and other copyright issues’ in Chapter 7.6: Copyright.
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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.
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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:
the identity of the copyright owner;
what the copyright owners do and do not permit site users to do with the material on the website; and
who to contact for copyright clearance for the use of 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; and/or
encrypting (using a technological means to prevent copying) or using other copy control mechanisms.
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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. For more information about copyright owners’ rights, see Chapter 7.6: Copyright.
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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).
For more information about moral rights, see ‘Moral rights and other copyright issues’ in Chapter 7.6: Copyright.
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Downloading
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 or 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
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 (unless one of the limited exceptions to copyright infringement applies; see ‘Acts permitted by the Copyright Act’ in Chapter 7.6: Copyright).
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
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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.
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‘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.
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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.
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What about Facebook and X (formerly known as 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.
Copyright issues
Chapter: 7.5: The internet and the law
Contributor: Nicholas Bird, Barrister
Current as of: 1 September 2024
Law Handbook Page: 656
Next Section: Defamation issues
