25th October 2018 - Lara Alexandra

Creating Online Content

With the increasing presence of blogging and social media platforms, such as Facebook, YouTube and Instagram, sharing information online has become a convenient way to interact with others and, in some cases, even make an income.

Considering the extent and relative ease of obtaining, reposting, or otherwise sharing information over the Internet, it is important to be aware of the potential legal issues that may be encountered by Internet users that share and collect information online.

This article addresses some of the legal issues that Internet users and content creators may face when sharing, collecting, and repurposing information online.

Copyright and Moral Rights

If you share your own original work online, then that work is protected under the Copyright Act 1969 (Cth) (the ‘Act’).   This act defines the scope of copyright protected in Australia and also the rights of creators with work to protect.

This means, however, that the original works of other creators are also protected. You should not assume that something you read online is free to use. If you wish to use or reference another author’s works, you must have permission from that author. If you do not, you may be liable for copyright infringement if you post content you did not originally create.

It is important to note that copyright does not only protect authors of original written works, but it also protects the creators of images and photographs. You can create your own images which are, of course, free to use, or otherwise there are stock images that you can use through purchasing a licence without being liable for copyright infringement. If you do choose to use stock images, make sure you carefully read the website’s terms and conditions to ensure your use won’t infringe.

An author may also bring an action against any person infringing the moral rights of the author. There are three types of moral rights. The right of attribution gives authors the right to be identified as the author of their work. The right against false attribution gives authors the right to take action against parties trying to claim credit for their work. The right of integrity is the right for authors to ensure their work is not subject to any act that may harm their reputation.

Copyright is not infringed if the circumstances constitute a fair dealing. The exceptions for fair dealing allow the use of copyright material for the limited purposes of research or study, criticism or review, parody or satire and reporting the news. Under Australian law, there is no hard and fast rule as to the quantity of a “fair” portion. The legislation does not define what is fair and this is determined on a case by case basis. A “fair dealing” means the use of an appropriate, but not excessive, portion of a work for any of the fair dealing purposes.

Research or Study

The Act does not define ‘research or study’. Beaumont J in De Garis v Neville Jeffress Pidler Pty Ltd (1990) adopted the dictionary meaning of ‘research’ as “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles” whereas the dictionary meaning of “study” included “the application of the mind to the acquisition of knowledge”, as by reading, investigation or reflection”, “the cultivation of a particular branch of learning, science or art” ….

The relevant purpose is that of the person making the dealing. The purpose will be a fair exception if the person copies a fair amount of the work for use in an article or publication where the Act stipulates the amount of what is a reasonable portion.

Where a literary, dramatic or musical work (other than a computer program) is contained in a published edition of 10 pages or more, a reasonable portion is up to 10% of the number of pages in the edition and if the work is divided into chapters, than the reproduction contains only the whole or part of a single chapter of the work, even though the number of words copied exceeds, in total, 10% of the number of words in the work .

Criticism or Review

Copyright is also not infringed if the circumstances constitute a fair dealing for the purpose of criticism or review.

In TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2), Hely J considered that fair dealing involves questions of degree and impression and that the criticism or review must be genuine and not a pretence for some other purpose. Finkelstein J referred to the comments of Story J in the US case of Folsom v Marsh and summarised this as:

It is certainly not necessary, to constitute an invasion of copyright, that the whole of the work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto … Neither does it necessarily depend upon the quantity taken …[i]t is often affected by other considerations, the value of the materials taken, and the importance of it to the sale of the original work … In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

 Parody or Satire

Fair dealing of copyrighted works will not constitute infringement if it is for the purpose of parody or satire. Parody and satire are forms of creative expression that involve humorous or satirical imitation.

Reporting the News

Copyright will not be infringed if is a fair dealing for the purpose of reporting the news.

Defamation

Asides from copyright, there are other legalities blog writers need to consider, such as defamation laws. Blogs are platforms where authors can express their opinions, and it may be easy to overlook defamation laws. However, if a blogger is writing about their views and damage the reputation of another identifiable entity and has no legal defence then the author may be vulnerable to an action for defamation.

Conclusion

Running a blog whilst remaining in compliance with the law is a tricky business, however, it’s easy to remember the basics. When using any material that doesn’t belong to you, such as images or content online, consider who may own the copyright and whether you need permission for use.

 Take away points

• Running a blog is an innovating and exciting new way to share information online. However, an author has to consider the legal implications of blogging to ensure that the author is blogging in compliance with the law.
• You may take your own images or use stock photos under licence without being liable for copyright infringement.
• If you do choose to use stock images, make sure you carefully read the website’s terms and conditions to ensure your use won’t infringe.
• An author may wish to use popular logos or trade marks to go alongside their blog post, however, this probably isn’t a great idea as brand logos usually have trademark protection and copyright protection.
• Be aware of the fair dealing provisions of the Copyright Act 1968 (Cth).
• Bloggers need to be cautions that their blogs are not defamatory of the reputation of someone else.

Lara Alexandra, Legal Assistant and Trade Mark Administrator

We are a team of trade mark attorney and IP specialists based on Gold Coast and Sydney. If you need any assistance with legal advice for your blog, please contact us on 1300 77 66 14.

 

 
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.