I am blessed to be able to work with a lot of creative individuals – designers, developers, photographers. The protection of their copyright is probably the most significant concern that ‘creatives’ approach me with to discuss. Even more than making sure they get paid. On the flip side, I also have conscientious clients that ask me about what type of information they can re-use and how copyright works. There is a big difference between the way intellectual property and copyright laws operate in Australia and America. One of those differences is the concept of fair dealing – which means the ability to use copyright information without permission from the owner. America has an established regime that sets out what is considered fair dealing, where in Australia this is not as straightforward.
What is Copyright?
Under the Copyright Act in Australia – COPY RIGHT – is literally that, a right which is automatically granted to the person that creates certain work. That work needs to be somewhat tangible, in that it can be a song, a performance, a written piece of work or software code. Copyright doesn’t apply to ideas. There must be a piece of work where the copyright is created in. For example, I have some ideas about tips that I want to give out to people, and I put those tips in a tip sheet available on my website. The copyright will attach to the document and the words in the tip sheet, but not the concept behind the tips given. So, the protection I am given automatically by copyright means that if someone else creates a tip sheet that is substantially similar in content and style, they could be breaching my copyright. The alternative is that someone uses my tip sheet and the concept of the tips that I have given and creates a separate, different looking document, with completely different words – even though ultimately the message given might be the same.
Use of particular phrases
The other complicating aspect to breaching copyright is that a small piece of information or a small piece of the work could actually be considered substantial in the entire context of the work and copyright can be afforded to one sentence of a speech for example. An instance of this would-be Martin Luther King’s speech and the sentence “I have a dream”. That phrase might actually be subject to copyright because of the subsequent fame and knowledge or recognition that the phrase is attributed to him and his speech in particular. Whereas the entire speech or a sentence later in the speech may not have the same significance and wouldn’t be considered a substantial copy if it was re-used.
Social media and the internet generally, have created an environment where we have so much information readily available at our fingertips. We have the ability and functionality to ‘like’, share, click on an image, save it, pin it etc – and often we do these things as a user, without regard as to whether it could be considered a breach of copyright. Each social media application and every website will have different rules about what you can and can’t do with content that you find. Unfortunately, it is often in the ‘small print’ and overlooked by users.
So, as a business owner, if you do intend to use images or content from someone else’s website, or if you want to share something that you have seen, you really should look at; whether that person has given any permission to use it, you should look at the terms of the application that you are using or the terms of the website that you are looking at. If you’re still unsure, you can contact the owner. There are situations, as I touched on earlier, where you can fairly use copyright without needing consent. That includes news articles – sharing news articles, for research, if you are giving a review, if your engaging in parody or satire and potentially if you are adapting works literally or dramatic works.
Sometimes, as creators of copyright material, we can assert our copyright by using the little © symbol with our name and the year it was created. One thing that I often see, is that often people think that you need to update the year so that the information looks up to date and new. This can actually confuse copyright claims. Even though you don’t have to put the symbol and the information on something that you create, it is the way that you are telling the world that you are the owner of that and that they need to seek your consent to use it. What happens is if you create something in 2015 and then two years later update it to 2017, there can be confusion about when you want to assert your rights over that material, because you have essentially changed the date that you created it.
Use under license
As a business owner, you should take steps to protect your copyright material, but you should also ensure that you are paying attention to the rights of the owner with the information that you are using. As a consumer, you should also do the same. You shouldn’t assume that an architect’s plans are owned by you. Often when you are granted the ability to use someone’s copyright material, it’s subject to a license. The license can be included in terms and conditions on a website, in your business terms and conditions, in a client agreement that you’ve signed, or granted in a separate copyright licensing agreement.
How that works is the owner of the copyright will grant permission for the copyright material to be used in certain circumstances which can extend to;
- what you can use it for – the purpose of what you are using it for
- Editing rights or making alterations the copyright material in any way. For example, this might look like in practise, if you are a business owner and you are allowing people to comment on your blog, you’re allowing them the ability to give you their opinion and their views, whether they own that content on your blog is a decision you will need to make. You will need to state whether you are allowed to alter it, or add to it. Similarly, if you are a photographer and you’re going to be giving files to people, you might decide that you can’t use them for commercial use, that it’s personal use only. If you have a membership group where you are giving your members information, like an online course or access to resources – it should be clear about what they can do with those. For example, do you want to stop them just copying and distributing the resources for a fee. Should they only use it for their personal use? Can they show anybody else? Can they create their own version in their business to assist them?
Copyright is a tricky, complex, area of law. It’s based on concepts such as ‘what is substantial use’ and proving ownership.
As business owners, we owe an obligation to fellow business owners with respect to how we are using their information, especially in consideration of online information availability. Would you like the core aspect of your business to be taken from you and distributed among people that might be your clients, or among competitors, without your consent?
Hopefully this has encouraged you to think twice when you are going to share or use information that you have obtained from somewhere on the internet, through technology. Think about what the owners’ rights are and whether you have respected those rights.