Small business owners with their own websites need to be familiar with a few key points regarding copyright law. This is because, as a website owner, dealing in copyrighted materials is a key part of your business regardless of whether you realise it or not. As a result, you are exposed to certain legal risks. Infringement claims on the Internet are more common than many people think, and educating yourself with internet copyright facts is the only real way to protect yourself.
What is protected by copyright?
Under Australian law, a copyrighted work may be any “literary, musical, dramatic, or artistic work“. Almost anything which has been written and which is not trivial in nature is considered a literary work, for example, even computer programs. At the same time “trivial” content such as titles, slogans, and single words are usually not protected by copyright.
Similarly ideas or information themselves cannot be copyrighted. If two artists paint a picture of the same waterfall from the same spot, both will have copyright in their works and neither will be infringing upon the others’ rights. (This is different from e.g. patents and trade marks, which deal in ideas.)
Crediting someone is not enough to use their work
Contrary to widely held belief on the Internet, you cannot for example take an image off someone’s website and put it on your own without asking permission — even if you give them credit or a link.
It’s true some websites explicitly allow you to use material from their site as long as you give a link back or credit the author. However this only applies to those specific sites. For everyone else you must check with them first and get permission.
Even if there is no copyright symbol, it’s still copyrighted
A work (such as an image or article) is copyrighted automatically the second it is created by the author. No formalities are required in Australia — there is no need to register it, attach a “copyright symbol,” or provide a copyright notice.
It is still sensible for copyright owners to attach a notice and deal with their works as they would any other business asset, but this is not required to claim copyright.
No matter where the work has been posted or how it has been used, it is copyrighted unless the creator declares otherwise. Simply because a work has been posted online does not mean it is free of copyright restrictions. You must get the express permission of the author or creator to use someone else’s photographs, words, images, songs, articles, music, etc.
The artist or creator holds copyright unless agreed otherwise
Copyright law is not the place for ‘self-lawyering.’ Many clients who hire a graphic designer or writer assume they are automatically granted copyright to the work, but this is not so. (In fact commercial photographers usually only grant partial rights to images to their clients, as this allows them to reduce the up-front shooting fee.)
For example, one firm hired a graphic designer and — assuming they fully owned the resulting image — put it on their website with credit given to the firm’s internal designer, who had not done the work. The graphic designer was upset at not being given credit and contacted Legal123. They discovered that the only agreement between the parties was a ‘Non-Disclosure Agreement’ which had been constructed (by the original client) so as to protect the graphic designer!
The graphic designer still retained all rights to the work, including the right to demand a proper credit.
Copyright applies even to ‘non-profit’ uses
A common myth is that you can use a copyrighted work so long as you are not making money off it. This is not correct, and arguments that you gave the copyright holder ‘free advertising’ will not hold water in front of a court. The definite question in copyright is whether you breached the holder’s rights, not whether or not you made money off the breach.
You must still get permission if you alter or use a small part of the work
The law does contain exceptions to copyright for so-called ‘fair dealing.’ In these exceptions you may use works for critiques, educational purposes, and a few other cases without obtaining permission.
However these are very narrow exceptions and do not apply to most business owners. Generally, even if you use only a small part of the work or if you alter it before using it you must still get permission.