Dr Gillian Dempsey
Gillian Dempsey graduated with first class honours in law from the ANU in 1993, and completed her doctorate in 1998. She is a legal professional, teacher and researcher, focussing on intellectual property and information technology law.
This document does not constitute legal advice!
The aim of this work is to provide users on the Web with some idea of the ways in which copyright may influence the material that they publish and the manner in which it is published.
Th law is described as it applies in Australia. There are a set of criteria which a work must satisfy in order to attract copyright. As soon as a work which meets the criteria is created, copyright will vest in that work. The work need not be formally published to get protection and there is no requirement that the work be registered or that the © sign be displayed.
What does all this mean? Should you keep reading? If you copy material, you are at risk of being sued. You might find it advantageous to know a little about copyright law in advance so that you can protect yourself. Alternatively, you might like to know whether you can sue someone who has copied your work.
Copyright is a right in intangible property: that is, it is a right which exists in something that you cannot experience through any of your senses. For example:
This illustrates the point that the ownership of the copyright is in the information itself as distinct from the form in which it is stored.
So that information will be able to flow freely to help society, there are some limitations on the scope of copyright:
In order for something to be copyrightable, it must fall within one of the definitions of "work" , which are:
or one of the definitions of subject matter other than works:
These are all basically self-descriptive. The exception is literary works which can include seemingly odd things such as transport timetables and computer programs.
Having satisfied the above criterion, the work must satisfy the further related requirements of:
If all the above criteria are satisfied then copyright will vest in the work.
The copyright holder has exclusive rights to:
These rights can be varied in some cases by agreement or by the courts.
For most works which will concern users on the Web the period of protection will be the life of the author plus an additional 50 years. If you have several authors, it is when the last one dies. If the "author" is anonymous or a corporation, then the term is 50 years. Currently there are moves to increase the term of protection to the life of the author plus 70 years.
Infringement is always a matter for the courts to decide. There are a million little rules and exponentially more exceptions to those rules. But basically, there are two types of infringement:-
Where someone has copied the whole work exactly infringement will be obvious. What of where only a portion has been borrowed? The courts will look to see whether a "substantial part" has been taken. The courts have argued for a long time about what "substantial part" means and so far there is not a lot of agreement. There has always been much controversy concerning the interpretation of "substantial part" due to the inherent subjectivity involved in "objectively" determining whether the works seem to be substantially similar. The courts seem to be run by these rules of thumb:-
It gets even more complicated when the copying is inexact: how closely must the alleged infringing work resemble the original? The test is easy to state and yet hard to apply. It is whether an "ordinarily experienced person ... might think that one had come from the other". Yet, how can you decide whether this is the case? The courts think that if the defendant had "access" to the plaintiff's work then they can infer that they copied. The inference will be stronger the greater the degree of similarity.
The main issue that you need to be aware of here is that of parallel importation. If you have purchased a legitimate copies of a computer program in another country and then sell them in Australia, it is very likely that you will be infringing copyright. The rules against parallel importation are more strict in relation to computer programs than that of books or any other form of copyright. At the time of the creation of this document, Parliament was being asked to pass a bill to make the laws in this area even tighter.
Most of the material that has been covered up until refers to factors that the courts will look to in determining whether Party "A" has copyright and whether Party "B" has infringed that right if it is found to exist. In practice both matters intertwine.
Unless you are sure of the source of the work that you are about to post on the Web, then the safest course that you can follow is to assume that its use will infringe copyright.
Now that the scheme of copyright and its basic concepts have been explained, the discussion will move to issues which are of specific concern to publishers on the net.
Copyright in each type of work or subject matter is independent from each other even though they are expressed together in a single medium. When you sue for breach of a right, you must pigeon-hole your creation into one of the definitions of works or subject matters other than works. So, if your creation is composed of subject matter that covers more than one type of works, then you would have to sue for breach of all types of works covered by that creation: e.g.
What does this mean in relation to the WWW, especially Multimedia? Although multimedia combines words, still pictures, video and sound into a coherent whole it must be divided into different parts to determine infringement. There has been much speculation as to whether multimedia should be included as a separate work under copyright, though so far no jurisdiction has adopted this approach, perhaps due to the conceptually difficult issues which this raises when contemplating infringement.
Although this looks like a simple issue, once copyright enters the area of electronic communications it becomes more complex. Often, it is hard to determine who the authors of a work are. This is a problem, because it is necessary to indentify the authors of a work so that:
An author is a person who reduces a work to "material form". Although the concept of authorship initially may appear to be straighforward, it becomes conceptually difficult, especially in the area of joint authorship. For the most part, it is expedient to think of the act of reducing something to material form as just having "hands on involvement". This practical "definition" has definite limitations: e.g. a reporters may transcribe what people say, but that does not give them property in the orator's words.
How does the above information apply to the WWW? Think of a typical WWW document. It is composed of words, still images and perhaps moving images and sound. How many separate works would be used in that piece? How many authors will have contributed to each work that is used? A screenshot of Roger Clarke's homepage will provide an example.
Look at the picture of Roger behind his desk surrounded with paper. There is no way that merely viewing the image will reveal its author, or whether they would consent to its use or reproduction. The process of authorship in the case of Roger's photo was more complex than it would at first appear. In mid-1993 the Department of Commerce was testing the latest version of Adobe Photoshop. Seven photographs were taken using the "Quicktake" digital camera one afternoon by me (Gillian Dempsey) and by Ooi Chuin Nee. We then selected some of the photographs to be manipulated to make a "collage". We had then discussed what we intended to do and decided that we could use a photograph of my arm which Chuin Nee had taken to be the "student disappearing underneath Roger's reams of paper". We then went about manipulating the photographs. Chuin Nee has a far steadier hand with a mouse than me, so we discussed what we intended to do, and she adjusted the images. Sometimes I would use the mouse to get an effect I wanted. At one point we had removed part of Roger's shirt because we could not see it against the background of paper. Kathy MacLaren came in when we were a bit puzzled and pointing, said: "if you move that there and darken that then...". We altered the images in the manner in which she had suggested. Roger saw the finished image and we told him that he could use place it on his homepage.
Who, then, is the author of the end product?
It is likely that both Chuin Nee and I are authors but not Kathy, because she did directly contribute to reducing the work to "material form".
Who is allowed to use the image?
Chuin Nee and I did not observe the correct formalities to give Roger ownership because we did not sign a piece of writing to that effect. We did give Roger some sort of licence, but the boundaries are not obvious. It is unlikely that it is an "exclusive" licence (which he would be able to enforce even against us). It is more likely to be a licence limited to him using the work on his homepage. In practice it is none of the above because we had always fully intended the work to end up "in the public domain" which means that anyone can use the image.
What of our contracts with the university?
At the time, the standard contract of employment with the university contained a clause in it which effectively stated that any intellectual property produced for our employment in the university belonged to the university. Chuin Nee's effort definately fell under this clause because she was acting as a research assistant preparing works for the WWW. Mine likely did not, I was a doctoral candidate in the area of intellectual property and computer programs. The effect of the appropriation clause is such that it is likely that the work is owned by Gillian Dempsey and the Australian National University.
The scope of protection under "literary work" under copyright covers all types of computer programs, not just executable programs. The examples that are used here are executable programs because they are programs that everybody is likely to have either heard of or used
The danger can be notionally divided into two areas:-
If you are sending programs across the net, or merely making them available, it is probable that you are infringing copyright. It is always advisable to note whether the program that you are looking at is shareware, freeware, or whether the program's owners obviously intend to control distribution. Usually their position is made very clear as part of their documentation. If sent a program over the 'net, or downloading from a site - remember that you are still going to be liability for infringing copyright occurs even if your copying was innocent or inadvertent. A sensible thing to do if uncertain is to post an inquiry to a usegroup/newsgroup. Another helpful hint is that you can bet that anythingdistributed by a large software house in unlikely to be free.
Whether or not the materials are the subject of copyright under the doctrine of "fair dealing" copying is allowed where it is for the purpose of research or study or journalistic comment. Fair use provisions are mainly of concern where infringement is alleged. The boundaries of fair dealing are unclear, relying on vague notions such as
The problem with relying on fair dealing is that behind these innocent looking questions there are legal precedents. This means that users should be careful, what the courts perceive to be a fair use is probably quite different to what a normal person would understand.
Copyright infringement is subject to both civil and criminal liability. The criminal actions center around the reproduction and distribution of the infringing work. The rationale being that appropriating the holder's distribution rights amounts to theft. The penalty for a first offence is a fine not exceeding $500 per article copied (for an individual) and $2500 per article copied (for a corporation). For second and later offences, the penalty is $500 per article copied and/or less than 6 months imprisonment (for individuals) and for a corporation, the fine increases to $5000 per article copied.
Whether or not the infringer is convicted, the court has the power to order that the infringing article, or the means for its production, be "delivered up" to the holder, or destroyed, or dealt with in any such manner as the court thinks fit. Delivering up the goods to the holder is typically used by the courts.
If you can't be good, be careful!