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Websites and Copyright

When you are building a website to advertise and promote the supply of your goods or services, it is important to keep your intellectual property rights and the intellectual property rights of others.

Copyright Issues

Copyright does not protect ideas, but rather the material form in which the ideas are expressed. The component parts of websites such as text, videos, images, recorded audio, tables and underlying source code are protected by copyright. An original work in these components is automatically protected from the time it is first published or created.

Be sure to avoid copyright infringement on your website. As the name suggests, copyright is a right against copying. Copyright is infringed by the unauthorised reproduction of a portion of “work” in which copyright subsists. Copyright may subsist in such “works” as literary, dramatic, artistic and musical works such as computer programs, directories and databases, drawings, cartoons, photographs, recordings and films.

It is copyright infringement to do one or more of the exclusive rights in copyright subject matter without the copyright owner’s permission. These are acts which the copyright owner has the exclusive right to do under the Copyright Act 1968 (Cth). The bundle of exclusive rights which attach to copyright works include the right to reproduce the work in material form, publish the work, communicate the work to the public, and make an adaption of the work. These rights are exclusive to the author or creator, therefore, do not copy the content or images of others without their permission.

There are a few things that you should be careful with as a webpage creator. For example, be sure to obtain clearance for any images by ensuring you have obtained permission from the owner of the images or that appropriate licences are in place. The text on your website should be as a result of your original work and must not lifted from anywhere on the Internet.

Ensure that any material you use on your website is available for use and that it does not infringe the intellectual property rights of others!

When you can use material on your website without permission?

You do not need to get copyright permission if the material is not protected by copyright, copyright has expired, you are not using a “substantial part” of the material or a copyright exception applies.

Material will not be protected by copyright if it not original. To attract copyright protection, a work must be “original” in the sense that it originates from the author and is not itself copied from another person’s work. This follows from the fact that copyright in a work protects the original expression. It is tied to the expression of an idea and not the idea itself. The bar is not high for a work to be original. If the work originates from the author because of his skill or labour and it is not copied from another, then it is original. The degree of originality required is simply that the work is “not copied” from another. A work that is a copy of another or is automated is not “original”.

Section 14 of the Copyright Act 1968 (Cth) (the ‘Act’) provides that acts done in relation to a substantial part of copyright subject-matter is deemed to be done in relation to the whole of the work. This means that copyright can be infringed in relation to copyright work that is less than the whole if what is taken is a ‘substantial part’. As to what is a ‘substantial part’, the court in the Metricon Homes case, considered that the issue is a qualitative and not a quantitative question.

As Drummond J observed in Coogi Australia Pty Ltd v Hyspot International Pty Ltd [1998 FCA 10 at 172:

The fact that copyright, once established, can be infringed by the copying of something less than the entire work, that is, by copying a substantial part of the whole, does not detract from the basic principle that before an infringement action can succeed, the claimant must, where its claim to copyright is put in issue, prove copyright in the particular entity that constitutes the “work”.

Copyright expiry in Australia depends on the type of work and when the work was created. Exceptions to copyright infringement includes the fair dealing defences and a number of other exceptions.

Protective Measures for a new website

Determine ownership of intellectual property in the content on your website and apply for other rights at an early stage including trade mark and design protection. Intellectual property rights are complex and constantly changing. It is advisable to seek professional advice from an intellectual property professional or trade mark attorney at an early stage. When paying a website designer to create your website, you should have a written agreement dealing with ownership of copyright and moral rights. Remember the adage, “prevention is better than cure”.

Take Away Points:

  • Copyright is not a registered right in Australia. It is free and arises automatically from the time that the work is first published or created.
  • Copyright owners have the right to exploit their copyright works themselves or give permission to others through granting copyright licences or assigning their copyrights.
  • Be careful not to infringe the copyright of others by using material on your website without the permission of the copyright owner.
  • Protect your own IP and enter into an agreement with your website designer that determines the ownership of copyright and treatment of moral rights, and,
  • Remember to file a trade mark to protect your brand name!

 

Jaclyn-Mae Floro, BCompSc

Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about any of our services or get in touch at law@w3iplaw.com.au.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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