14: An insight into copyright
“Piracy is robbery with violence, often segueing into murder, rape and kidnapping. It is one of the most frightening crimes in the world. Using the same term to describe a twelve-year-old swapping music with friends, even thousands of songs, is evidence of a loss of perspective so astounding that it invites and deserves the derision it receives.”
…Nick Harkaway, The Blind Giant (Goodreads).
Continuing our discussion about media law for citizen journalists, here we delve into copyright law.
IN 1997, I made a number of photographs of the co-inventor of the permaculture design system, Bill Mollison, and in later years published these on my website.
They soon started to appear on the websites of bloggers and other organisations. While I was okay with others using those photographs, they were in fact breaking the law as they had not sought permission to use copyright images and did not credit the source of the photos.
Ironically, those permaculture organisations using the photographs claim to follow the ethics of the permaculture design system at the same time they fail to follow media ethics.
Photos are not free unless stipulated
The repeated taking of the images (and others) from my website and their unauthorised reuse emphasises the persistent belief that photographs appearing on the worldwide web are free for anyone to use. They are not unless they are marked as being in the public domain or a carry Creative Commons licence notice stipulating how they can be used.
It is important that as citizen journalists we do not infringe the Copyright Act 1968. The Act governs copyright law in Australia.
The Berne Convention on copyright
Australia is signatory to the international agreement on copyright, the Berne Convention for the Protection of Literary and Artistic Works.
Wikipedia succinctly describes how the Convention:
stipulates that copyright exists the moment a work is ‘fixed’ rather than requiring registration. It also enforces a requirement that countries recognise copyrights held by the citizens of all other parties to the convention.
Thus, copyright is international.
The Convention states that it is not necessary to register copyright in each of its 140 member countries and authorises countries to allow fair use of copyrighted works in other publications or media.
Laws covering intellectual property (IP) in Australia are made by the federal government and have national jurisdiction.
As citizen journalists, the main IP law we interact with is copyright (other IP laws are those of patents, trademarks and design registration).
Copyright in Australia
Copyright in Australia is administered under the Copyright Act 1968. The Act implements Australia’s participation in the international Berne Convention for the Protection of Literary and Artistic Works, commonly known as the Berne Convention.
The international symbol for identifying copyright material:©
The Copyright Act 1968 covers articles, photographs, illustrations and similar works. These are automatically copyright to the person creating them or to an organisation the person is working for. This is so without applying the international copyright symbol: ©.
Legally, permission needs to be sought to reproduce copyright material in a blog or on a website unless it is reproduced for editorial purposes such as its relevant to reporting a story, for educational purposes or for review or criticism.
There is a persistent belief that photographs or other material appearing on the worldwide web are free for anyone to use and that free use of copyright material can be made for non-commercial purposes or by crediting the source. This is incorrect unless the material is marked as being in the public domain or carries Creative Commons licence notice that stipulates how it may be used, distributed and credited.
Copyright protects expression, not ideas
Copyright protects only the expression of an idea, such as appears in a publication or blog. Copyright does not protect information, an idea or the articulation (describing) of an idea, nor styles and techniques.
The expression of ideas, original photographs and illustrations, chapter arrangement appearing in a book or other publication will be copyright but the ideas being discussed will not. For example, a photographer making a photo of a farmer holding a garden fork in front of a field of grain would have copyright of their own photograph but not of the concept of photographing a farmer holding a garden fork in a similar setting.
Under Australian law:
- copyright includes written work, photography, video, illustration, artwork, film, sound recording, paintings, drawings, maps, song lyrics, scripts of plays and performance, engineering/design/architectural plans and original performance where the performance is recorded in some way
- copyright is free and automatic upon creation of the work; there is no need to register copyright in Australia nor is there any legal requirement to add the copyright symbol, ©, to a work (although copyright holders may wish to do this to assert their IP, especially where publication will appear outside Australia)
- copyright lasts only for a limited time — the life of author plus 70 years; it then goes into the public domain where anyone can use it in any way they choose; copyright in a recording continues for 70 years after the year of first commercial release, even if this is some years after the recording was made
- where an employee is the author, the owner of copyright is the employer unless other arrangements are made; thus, articles we write as an employee of a magazine publisher are the copyright of the publisher
- photographs made as a freelance photographer remain the photographer’s copyright unless the photographer assigns the photograph to a publisher
- an author has to be able to provide evidence that they created the work and it must exist in material form, which includes electronic; copyright can be asserted with the copyright symbol, ©, and the copyright owner’s name and date of creation (eg. © Russ Grayson 2018); although this is not necessary in Australia it may be useful where the author believes assertion of IP to be in their interest
- permanent artworks, such as sculptures in public places are not protected by copyright so as to allow photography and incidental filming (‘freedom of panorama’ — see below); murals may be protected
- (from Wikipedia): “any photo, published or unpublished, anonymous or attributed, taken before 1 January 1955 is out of copyright and in the public domain. The Australian Copyright Council is quite specific and unambiguous in regard to copyright law on photographs taken prior to 1 January 1955: “If photographs were taken prior to 1 January 1955, copyright has now expired”; this was introduced as a condition of the Australia-US Free Trade Agreement
- the Australian government does not infringe copyright if its actions or those of an authorised person are for the government
- Crown copyright, the copyright applied to government materials, expires 50 years after publication.
Freedom of panorama
Freedom of panorama is the right to take and to disseminate photographs of copyrighted works (such as public sculptures and buildings) provided those photographs were taken in public spaces.
A photograph or artists’ rendering is not the same as a copy of the thing itself, which is protected under copyright law.
Copyright prohibits reproducing a substantial part of a work with the following exceptions in which a portion of a work may be reproduced and published:
- news reporting
- review or criticism, such as a book review or a critique of a book or article
research or study
- judicial proceedings and providing professional legal advice
- parody or satire (added by the Copyright Amendment Act 2006); this comes under the ‘fair dealing provision’ which is similar in intent to the US ‘fair use’ provision; it includes making a mashup that includes elements of a copyright work.
Following the introduction of digital technologies the Copyright Act was amended to allow:
- shifting’ music and recorded content for personal use such as copying a CD to a portable music player format (eg. MP3, AAC), (s 109A); this excludes commercial premises which are covered by separate arrangements
- recording a broadcast to watch or listen to at a more convenient time (s 111)
- making a copy of a sound recording for private and domestic use
- making a copy of a literary work, magazine, or newspaper article for private use (43C).
Copyright and performance
Performance is protected by copyright if:
- it is recorded in some way; performances that are ephemeral and not recorded in any way will not be protected by copyright
- performance art may include other material that is protected by copyright, such as lyrics to songs and recordings
- performers’ consent is required before recording their performances
- artists also have moral rights (see below).
Source: Copyright Council Performance Art and Copyright.
Copyright in photography
Peoples’ likeness is not protected by copyright and it is not an invasion of privacy to take another persons photograph.
Where we own the copyright to photographs we have the exclusive right to:
- reproduce and communicate the photos such as uploading to an online service or publishing in some other way, and making prints
- sell or license (give permission for others to use) our copyright
- freelance photographers producing images for publications own copyright unless some other agreement affecting ownership is made.
Copyright does not include photographic prints, photographic negatives or digital files as these are physical objects and subject to property law.
Photographs of people
Peoples’ likeness is not protected by copyright and it is not an invasion of privacy to take another persons photograph. This makes it legal to take and publish photographs of people unless done under some commercial or other agreement.
There is no legal right to privacy in a public place. Photographers may engage in street photography where people appear in images and at venues such as markets.
In their photography information sheet, Artslaw.com reports:
In a case involving street surveillance photography used as evidence in a criminal case, an Australian judge stated ‘a person, in our society, does not have a right not to be photographed’ (R v Sotheren (2001) NSWSC 204 (20 March 2001) . Dowd J).
This appears to be interpreted as a general rule covering photography.
Copyright of ideas or information
There have been a number of instances of mistaken belief in what copyright protects.
One of these occurred in the 1990’s when permaculture co-inventor, Bill Mollison, told a UK organisation that the word ‘permaculture’ was copyright and not available for re-definition. Protection for the word would have come under trademark legislation rather then copyright.
Another instance was when the Permaculture Institute forbade the common practice of permaculture associations using as their own logo the illustration that appeared on the cover of Bill Mollison’s book, Permaculture — A Designers’ Manual. In doing that the Institute was legally correct because, as the Institute said, the so-called logo was originally designed as the cover of the book and thus was copyright.
There was controversy for a time when the Permaculture Institute and others asserted that to teach permaculture, educators had to follow the content and chapter arrangement in Permaculture — A Designers’ Manual. This ignored the fact that copyright extended only to the text and illustrations in the Manual and did not protect the ideas found in permaculture. Educators were legally free to reinterpret the ideas in their own way.
It was alleged that the author of an instructional book on permaculture, a woman long associated with teaching the design system and well respected in permaculture circles, co-opted the ideas in g Permaculture — A Designers’ Manual for her book. There was no copyright infringement here as the ideas in the Manual were not protected by copyright legislation, only the text and illustrations.
Use of the copyright symbol — ©
Australian government information on copyright states in regard to the copyright symbol, ©:
Use of the copyright symbol was significant when the United States was not a member of the Berne Convention and it would only recognise copyright where the © symbol was used in accordance with the Universal Copyright Convention (UCC).
The UCC has been largely overtaken by the other treaties that do not require any formalities.
To qualify for copyright protection in countries that are only members of the UCC, it is necessary that works bear, in a prominent place and from the time of first publication, the copyright symbol — © — together with the name of the owner of the copyright and the year of first publication, for example:© Jane Bloggs 2005.
However, using the © symbol, while having little legal effect, alerts others that copyright is claimed in the material in question.
Moral rights are a subset of copyright applicable only to individuals and are not transferrable or saleable.
Moral rights attribute:
- the right to be identified as author of a written, photographic, illustrative or other work
- protection against appropriation of an individual’s work by others where the work would be falsely attributed
- the treatment of the work in a derogatory manner such that would damage the reputation of the author.
According to the Copyright Council, “Generally anyone reproducing a photo that is protected by copyright has an obligation to attribute the photographer as well as to get permission from the copyright owner.”
How do we deal with copyright in our work as citizen journalists?
Our work remains our own copyright unless we perform it for an employer.
Other than that:
- seek copyright holder permission where we wish to reproduce an article or a substantive part of an article, a photograph, artwork or illustration in a publication of our own, including our website
- caption the reproduced work as © (copyright owners name and year of copyright)
- add © (our name and year) in circumstances where we wish to assert copyright although this is not necessary under the the Copyright Act 1968
- if we wish to permit use of our work in circumstances where we can exert some control over reuse, apply one of the Creative Commons licences
- caption photographs to identify their copyright/Creative Commons status; alternatively, state that the work exists in the ‘public domain’; this makes it freely available for anyone to use in any way
- apply a watermark to our photographs if copyright, using the © (our/organisational name, date) format
- acknowledge the photographer/artist/author whose work is used so as to comply with the Moral Rights provision of the Copyright Act
- provide contact information on our works, website or blog so people interested in reusing our material can contact us.
- if works are published online there is an implied licence to publish links to them in much the same way that books and articles are listed in print publications as footnotes or endnotes.
Caption photos to acknowledge source
Here are two examples of ways to caption photographs to acknowledge their source. Doing this also acknowledges the photographer’s moral rights as creator of the image.
Below: Use of a caption identifying the source of the photograph:
Below: Apply a watermark to the image (lower left of image). There are apps that do this, as does Adobe Lightroom, the popular photographic database and image editing software. The watermark carries copyright information as well as a website URL through which the photographer can be contacted and where more of their work found.
Copyright in citizen journalism
All of the above points apply to online journalism, the practice of citizen journalism and blogging.
Now and then we encounter community organisations making use of copyright material in the belief that it is legal for not-for-profit organisations to do so.
Copyright material may be used in reporting news in a newspaper, magazine or similar periodical, or in a film, or by means of a broadcast
The Copyright Act allows use of copyright material, without permission, for very specific applications that come under the ‘fair dealing’ provision (note the unlike the US, Australia has no ‘fair use’ provision):
- reporting news (often referred to as ‘editorial’ content)
- research and study
- writing criticism or reviews
- producing and performing parody or satirical works
- providing professional advice by a lawyer, patent attorney or trademark attorney.
It is the first of these exemptions that is most relevant to citizen journalists. It approves our making use of a work, a photograph, for example, where it is directly relevant to our story. Thus, referring to the previously-discussed issue around associations using the cover illustration of Permaculture — A Designers’Manual, citizen journalists could use a photograph depicting the illustration when writing about the issue as a news piece, and remain within the Copyright Act.
According to the Australian Copyright Council:
The Copyright Act states that if you use less than a certain amount of a copyright item for research or study, the use is deemed to be fair.
If the amount used exceeds these limits, the Act sets out a number of factors to be taken into account to work out whether the use of the material is ‘fair’, if you are reproducing the material.
People can use copyright material for the purpose of criticism or review without infringing copyright, provided they acknowledge the author and title of the work, and provided the dealing is ‘fair’. The criticism or review may relate to the work being used or to other material.
Copyright material may be used in reporting news in a newspaper, magazine or similar periodical, or in a film, or by means of a broadcast, provided the use is ‘fair’. The author and title of the work must be acknowledged. However, music in news reports is not covered by this provision, unless the playing of the music is part of the news being reported. The use of music and sound recordings in this context is usually covered by broadcasters’ licences from the Australasian Performing Right Association and the Phonographic Performance Company of Australia.
On using material published online: “Is it fair dealing if I copy material from the internet? You should first check the website for any statements about copyright which apply to the material you want to copy — the copyright owner may expressly allow you to print and/or download material, possibly under stated conditions. Otherwise, you may print and/or save material to disk if it is for one of the fair dealing purposes.
Alternatives to copyright for citizen journalists
Citizen journalists and other content creators can give permission for the reuse of their work, however this requires a direct approach by the people wanting to make use of it unless permission is stated adjacent to the work.
The Creative Commons(CC) licences were developed as options for giving permission for reuse and in some cases remixing a work without approaching the copyright holder. They allow free distribution of a copyrighted work. A CC license may stipulate conditions for reuse such as attribution, non-commercial uses only and remixing.
Works under a Creative Commons licence retain the copyright of their creator. The licence is an approval to make use of the work in a way stipulated.
It is customary to state the type of Creative Commons licence at the end or beginning of an article or other work, much as Wikipedia does with its Creative Commons CC BY-SA 3.0 licence notice.
Citizen journalists may state that their work is in the public domain. In doing this they relinquish all rights to say how the work may be used.
The public domain also includes works in which copyright has expired, those made before the introduction of copyright legislation and the publications of the US government. This frees citizen journalists, for example, to make use of NASA’s extensive image library.