Originally Published January 2008
Publishers obviously have a great interest in the online space, although the fear that "new" media will supersede the "old" media of print has not, as yet, materialised. Nevertheless a strong online presence is an important part of most publishers' arsenal. A general rule of thumb when considering legal issues in online publishing is that the law doesn't suddenly change when you move to the online space.1 We have on more than one occasion told clients that their proposed (or active!) website is likely to constitute an infringement of other parties' rights, to be met with a response along the lines of "well, we're only doing what Publisher XYZ is doing, and they are much bigger than us, so it must be ok, right?". There is a perception that, because digital material is so readily available on the Internet and is easy to appropriate, re-use or link to, copyright law doesn't, or shouldn't apply. That perception is incorrect.
Get the Rights You Need
The most important thing for a publisher is to ensure that it has the necessary rights in its content to publish the material online. Just because a publisher has the right to publish content in the print edition of a magazine does not automatically mean that it has the right to publish that content in a corresponding online version. In publishing online, the publisher is exercising a different copyright right to publishing in print, namely the right to "communicate [the material] to the public". Any content licence should therefore expressly include the right to publish or communicate the material online. The scope of the online licence could be for a limited duration, or might allow publication in defined electronic "issues" that correspond to particular print issues.
Situations in which a Licence may not be required
So does a publisher need to obtain a licence for all material that they have not created themselves, before posting it to a website? The Copyright Act 1968 does permit the unlicensed use of copyright material in certain limited circumstances, if such use can be shown to constitute "fair dealing" within the meaning of the Act. Fair dealing exceptions include use for the purpose of reporting news, for criticism and review, and, more recently, for parody or satire.2
Fair Dealing for the purpose of Reporting News
The "reporting of news" exception in particular tends to crop up in an online environment, where many websites have a "News" section. What constitutes "news" is not rigidly defined, although courts have tended not to imply any special meanings to the term, rather expressing the view that the reporting of any event or situation can be "news"3. News doesn't need to relate to a current event, but it does have to have some element that makes it "newsworthy".
It is surprising what turns up in the "News" section of some publishers' websites. Publishers need to be aware that re-packaging entertainment content as "news" is unlikely to bring them within the scope of the exception. For instance, reports on the latest transgression of a well-known professional footballer, or what Reese Witherspoon was wearing at last week's Oscars, are likely to have a sufficient element of newsworthiness. Theoretically a publisher could reproduce content on stories such as this from other sources without permission, subject to that use also being "fair" (an additional requirement discussed below). On the other hand, posting a snippet from a popular television show under the "News" tab, or linking to an infamous YouTube video that is doing the rounds on the Internet, are examples of subject matter that is probably not properly classified as news. Ask yourself if the copyright owner of the content you are reproducing is likely to feel entitled to a licence fee for the use you want to undertake, and keep in mind the old adage that "if its worth copying, its worth protecting". While these aren't legal tests, they are good rules of thumb that often point you in the right direction legally.
Criticism and Review
Similarly, to successfully rely on the "criticism and review" defence, a user must show that what they did genuinely involved analysing or judging the quality of the work, or passing judgment on it. In a television context, the difficulties involved in applying this defence were demonstrated by the court decisions in the "Panel" cases between Channel Nine and Channel Ten, in which Ten 's "The Panel" ostensibly critiqued excerpts from a number of Nine programs. In a number of instances, it was held that Ten's real purpose was entertainment, or "poking fun" at either Channel Nine or the subjects of the programs, rather than genuine criticism and review. The legal principles are no different in the context of online publishing.
Fair in all the Circumstances
Even if you can show that you have, for instance, genuinely used material for reporting of news, or criticism and review, your use still needs to be "fair" in all the circumstances. Providing appropriate credit to the source goes along way to satisfying this element, so if you have taken a news item from another publisher, a credit that is reasonably proximate to the content itself should be given.
We have mentioned above the prevalence of websites linking to other sites, or alternatively, content from other sites being "embedded" into a publisher's website. Copyright issues aside, if this is done without permission of the other site, a publisher risks breaching trade practices law relating to misleading and deceptive conduct. Such conduct could occur for instance if the manner in which a link was displayed on a website implied the permission of, or an association with, the other site. Content from sources such as YouTube, MySpace and other "social networking" sites seem immensely popular in this regard. While the YouTube model is ostensibly founded on the principle of sharing content, a review of YouTube's terms and conditions of use is instructive. Their terms include that users of the website may not distribute any content (including user submissions) without YouTube's permission, and may not use them for any commercial purpose.
No Territorial Boundaries
One major difference in online publishing is its potential to simultaneously reach audiences in many different territories. This throws up a number of legal challenges. Whereas rights are very often licensed on a territory-by-territory basis, making content available on the Internet means that just about anyone in any country can view it and/or download it. The law has wrangled with the issue of "where" something is published when it appears on the Internet. Is it the place from which it was originally uploaded? Is it the location of the ISP where it is hosted? Where these are different, which country's law does one look to and apply? In Australia the High Court established in Dow Jones v Gutnick4 that, at least for defamation purposes, "publication" occurs wherever someone can receive and view material online. This allowed Joseph Gutnick to sue Dow Jones for defamation in Victoria, even though Dow Jones' web server, which hosted the material in question, was located in New Jersey. That principle allows a plaintiff a lot more options in terms of where they can sue publishers for defamation committed online. In practice however, a person aggrieved by defamatory material is likely to have to take action in the territory in which the material is being hosted, at least if the object is to get the material taken down in the short term. The threat of proceedings in New South Wales is less likely to cause an ISP in New Jersey to remove defamatory content than starting proceedings in the ISP's own backyard.
Blogging, Forums and UGC
User-generated content (or "UGC") is increasing in popularity online, and many publishers see it as an untapped source of content, especially given the quality of what someone can produce with a webcam or some graphic design software. And not to mention, it's usually cheap! We have touched on some of the legal issues that arise in this context, including the need for rights acquisition. You still need to have terms and conditions in place between you and the contributor that grant you the right to publish the material.
On another level, the defamation aspects of UGC are substantial. A publisher will be responsible for defamatory remarks published by it, even if it is only reproducing verbatim the comment of a website user. This is particularly dangerous where numerous users participate in an ongoing forum or "chat" session, often without sufficient real-time scrutiny by the publisher. This was illustrated in a recent defamation claim against the publisher of the Daily Telegraph by a number of persons who had provided character references for disgraced Crown prosecutor Patrick Power. While an initial print article referring to them as "Pervert's Mates" sparked the controversy, the claimants in fact took greater exception to allegedly defamatory comments published in reader "blogs" on the Telegraph website. Media reports suggested that the claims were informally resolved with substantial compensation being paid to the claimants.
1. As far as content regulation goes, new laws regulating online content are in the process of being introduced by virtue of the Communications Legislation Amendment (Content Services) Act 2007 (Cth). Previously a lot of online content "fell between the gaps" in the regulatory scheme comprised mainly of the Broadcasting Services Act 1992 (Cth) and the Telecommunications Act 1997 (Cth).
2. Copyright Act ss 41, 41A, 42.
3. See De Garis v Neville Jeffress Pidler Pty Limited (1990) 18 IPR 292.
4. 210 CLR 575.
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.