14: An insight into copyright

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.

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.

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.

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.

  • 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.

Reproducing parts

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.
  • 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).

Copyright in photography

  • 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.

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.

Copyright of ideas or information

There have been a number of instances of mistaken belief in what copyright protects.

Use of the copyright symbol — ©

Australian government information on copyright states in regard to the copyright symbol, ©:

Moral rights

Moral rights are a subset of copyright applicable only to individuals and are not transferrable or saleable.

  • 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.

Guidance

How do we deal with copyright in our work as citizen journalists?

  • 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.

The FA Peterson Memorial Hut is an emergency shelter on K-Col on Mt Field, Tasmania. Located in the pass linking Mt Field East to Mt Field West, the hut was erected to shelter bushwalkers when strong winds, rain, sleet or snow. Photo: © Russ Grayson 2017 pacific-edge.info
Richard Bartlett and Natalie Lombardo presented the Patterns of Decentralised Organisations workshop in Sydney. Richard is one of the founders of EnSpiral Network in Aotearoa-New Zealand, a cooperative of freelancers and others seeking better ways of organising their entrprise.

Copyright in citizen journalism

All of the above points apply to online journalism, the practice of citizen journalism and blogging.

  • 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.

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.

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Russ Grayson

Russ Grayson

I'm an independent online and photojournalist living on the Tasmanian coast after nine months on the road in a minivan.