Australia: Online copyright infringement: Are you a pirate?

The internet continues to make sharing and using images easy, making it dangerously simple to infringe copyright.

The recent Federal Circuit Court decision in Weller v Smith1 (Weller) is a timely reminder that images found online may be protected by copyright – and penalties apply for infringement. We provide three key tips to reduce your risk of copyright infringement online.

Australian courts have demonstrated a willingness to award damages for copyright infringements of online images.

In Tylor v Sevin,2 a web-only travel agency, Home Away Travel, used photographs it found online in its promotion of Hawaii. An American photographer, who operated a business of taking, selling and licensing his photographs as stock photos, learnt that the website had used his image. The travel agent was found to have "recklessly" breached the photographer's copyright in the photo and had to pay US$1,850 in compensation (the amount it would have had to pay to obtain use rights for the image) plus AUD$12,500 in additional damages (as a penalty and to act as a deterrent).

In the recent case of Weller, a business competitor intentionally used the photographer's images of jelly wrestling products. The judge found that a substantial award of additional damages under the Copyright Act was appropriate and awarded AUD$20,000 for the flagrant breach of copyright. He stated:

"Downloading or copying images from webpages on the internet is an easy thing to do. There is a need to send a clear message that doing so and using the images for commercial gain is... 'piracy' and that an infringer ought to be treated accordingly. There is a clear need for deterrence to prevent similar infringements of copyright."3

TIP 1: ASSUME COPYRIGHT ATTACHES TO THE IMAGE

Just because an image is publicly available on a website doesn't mean it is available for you to use.

In the UK case of Walmsley,4 a teacher used photographs found on Google Images in a blog set up to communicate to her students. The judge emphasised that in this day and age "there is not really any excuse" for believing copyright may not exist in an image just because there is no copyright notice on it.

Before using any images found online, assess whether there is any permission or licence from the copyright owner to use the images. Remember each individual image (even from the one site) may have different terms attached to it, and copying may be prohibited.

You may find it easier to look for images which have embedded rights information (metadata containing information such as the title, creator, and licensing information) by looking for images licensed under Creative Commons.5

TIP 2: DON'T ASSUME YOU'RE SAFE IF YOU USE THE IMAGE FOR A NON-COMMERCIAL PURPOSE

A copyright infringer can still be liable to pay damages, even if they don't use an image for a commercial purpose. In Walmsley, the teacher's use of photographs was on a blog maintained for students, and not associated with the school's commercial website which attracted students to the school. Regardless, the school still had to pay £1,000 in damages.

Law reform bodies have recommended that the Australian government create a "fair use" exception to copyright infringement6 which could allow people to use copyrighted material in a way that aligns with reasonable consumer expectations.

Whether a use is "fair" could take into account:

  • the purpose and character of the use (eg commercial or educational);
  • the nature of the copyrighted work;
  • the amount of copyrighted material used; and
  • how the use affects the potential market or value of the copyrighted work.

However, this is not yet the law in Australia. Therefore, only use copyrighted material in accordance with a licence granted to you, or within the current limited exceptions in the Copyright Act.

TIP 3: UNDERSTAND THAT IF YOU RE-PUBLISH THE IMAGE ONLINE, YOU MAY ALSO NEED TO COMPLY WITH OTHER COUNTRIES' LAWS

If you publish images online, you may be subject to laws of other jurisdictions. In general, this only applies when your website encourages people from the other country to engage with it – such as through language availability, the subject matter of the website, or the currency used.

Remember, if people could take copyright enforcement measures under other laws (such as the United States' Digital Millennium Copyright Act), you will want to ensure you meet the requirements of those laws.

DON'T RISK BECOMING A COPYRIGHT PIRATE

Contrary to popular belief, the use of images on the internet, whether on social media or found through Google, is not a free-for-all. It is becoming increasingly easy for copyright-owners to find out who is re-publishing images in breach of their intellectual property rights, and courts are not inclined to afford leniency to those who disregard copyright.

Remember to check you have necessary permission, and get legal advice if you are unsure, before using, distributing or re-publishing images found online.

Footnotes

1 [2016] FCCA 2827.

2 [2014] FCCA 445.

3 Paragraph [137].

4 John Walmsley v Education Limited t/a Oise Cambridge 2014 WL 2194626 (Intellectual Property Enterprise Court, 13 March 2014).

5 http://creativecommons.org.au/learn/fact-sheets/find-cc-materials/

6 See, eg, Australian Law Reform Commission report in February 2014, and the Productivity Commission's Draft Intellectual Property Arrangements Report released in April 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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