The Internet is often viewed as a free domain, one that is
outside the annoying interference of governments and their regulatory agencies.
People think they can do whatever they want. They believe that the laws that
govern our society do not apply on the 'Net
Attractive as an Internet, free from government intervention
sounds, it is, sadly, not the case. Increasingly, governments and their agencies
are becoming more invasive.
The message to us is: watch what you are doing and be aware of the law. As a law-abiding
citizen, the last rights thing that you want is to break the law inadvertently
because you do not know of its application on the 'Net. Ignorance of the law
is no excuse!
This article is mainly intended for the benefit of Web page
creators. It actresses the question, "Can I use other people's material
on my Web page?"
The first thing to note is that the text, scripts, graphics,
audio and movie files on the World Wide Web pages are covered by Copyright Law
(in Australia and overseas).
Often the answer is yes. Indeed, in the absence of an indication
to the contrary, it is safe- to assume that WWW material is pro,
Myth 1: Web pages are in "public" space, therefore
their contents are in the public domain and so can be copied or used by everyone.
This is a common
misunderstanding. Copyright law
does apply on the 'Net
Myth 2: There is no copyright warning on the material so anyone can freely use it
Wrong again. In Australia, copyright protection arises automatically.
(For the technically minded, it arises when a sufficiently original idea hs
been expressed in any format- including electronic forms.)
The lack of an explicit statement of copyright (cg. AII rights
reserved) or the copyright sign, is irrelevant as to whether the material is
protected copyright. Such a sign or statement is more of a warning or reminder
than anything else.
Of course, there are materials that are not protected by copyright,
and you can use these freely in your Web pages. These are the truly public domain
materials and typically include but at not limited to):
In Australia, the technically specific nature of the Act would
have a hard time protecting expression that does not fall within a recognised
category. For example, multimedia work and other materials produced in the digital
domain have no recognisable copyright categories.
Possibly. The fact that the material is protected by copyright
does not necessarily mean that you cannot use it.
The first thing to do is to read the copyright notice- on the
Web page- if there is one. By law,
a copyright owner has the exclusive right to reproduce, publish, perform, broadcast,
transmit and make adaptation of a work, and he or she can sell or transfer these
rights to another person. The owner has the exclusive authority to decide the
manner in which his or her material is to be used or not used.
From my experience on the Internet and with web pages which
have explicit copyright notices, the Web page creator often permits Web surfers
to use the malarial on the creator's Web page(s) for informational or educational
purposes. The surfers are permitted to view the page, copy the page, or even
print it for their personal use. However, surfers are often prohibited from
using the material for commercial gain. You can't make money from it and this
is only fair.
Where the Web page has no explicit copyright notice, the above
is a very good guide on what you can do with Web materials. If in doubt, e-mail
the person concern and seek permission to use their material.
Indeed, if you want to use a large portion of another person's
work, contacting the person concerned is the courteous and safe thing to do.
You may also consider adding a link from your Web page to the other person's. This approach provides
a form of acknowledgement as well as adding inter-connectivity for surfers.
Myth 3: If I alter material so that it is no longer the
same as the original, it is then not a "copy" - in fact, now I am
the creator!
Well...yes and no (isn't that always the case with the law!)
Let's consider an example. A graphic is most certainly protected by copyright.
If someone reproduced the entire and exact image on the WWW, they would infringe
that copyright. Nice and simple.
Alas, the digital medium is not that simple. It is easy to
add or delete a pixel, alter the colours or carry out a myriad of different
processes to images, using simple - and often free - drawing and painting programs.
What happens if you copy only a small part of the image, retouch
the image, or add new features to the image? The short answer is: I don't know.
This is a murky area of the law.
In the absence of better guidelines, it is best to:
1.
avoid copying a substantial part of the material; and
2.
make sure that the end product does not bear too close a resemblance
to the original image.
As to what constitutes a substantial part or resemblance, your
guess is as good as mine. Just he reasonable. Returning to the- original question:
yes, you can probably safely alter the material (although there is no guarantee)
provided the above guidelines are adhered to.
Just when you think what I have written is all you need to
consider when you want to alter another person's material, moral rights enter
the picture.
As over 65 countries have implemented Moral Rights Legislation,
similar legislation is likely to be introduced into Australian law soon. There
are four basic (and non-transferable) moral rights given to authors:
1 ) The right of integrity - the right to object to any distortion,
mutilation or other modification which might be prejudicial to the author's
honour reputation;
2) The right of attribution - the right to claim authorship
of a work;
3) The right to decide when a work will be published; and
4) The right to withdraw a work from publication .
The problem for a Web page designer is mostly with the right
of integrity. The other rights are not much different from existing copyright
law.
U sing the example I quoted, it is easy to change a graphic
s aspect ratio, colour depth or contrast, or to add new elements. The creator
of the original image may not like it. If this is the case, where moral right
is to be respected, then such editing of the image would be unacceptable.
As an aside, while respect for moral right is a noble thing,
the applicability of such rights on the digital medium is questionable. One
benefit of the digital medium is its ease of modification. If creators need
to seek permission or to consider the moral rights implications for using each
bit and piece of material, their creative freedom is likely to be restricted.
Myth 4: Copying a small portion of the material is okay.
"Fair dealing" permits me to do this.
This may be true, to some extent, in the United States (which
uses the term "fair use")
but, in Australia, this is a very limited exception that applies only to copying
of a limited amount of work for educational use (research and study) criticism
or review and reporting of news.
In essence, the application of "fair dealing" depends
on the type of use and on qualitative factors, not the quantity copied. Indeed,
once you begin to exploit the work commercially, fair dealing ceases to operate.
The chief danger of relying on this exception is that its application is highly
subjective.
You can make use of some material if you are careful, honourable
and respectful of the creators' rights. After all, if you have created something
original on your Web page, you surely would want your rights to be respected
too.
Let's be practical. What if you found something that you really
wanted to use on your Web page and it is protected by copyright? You can still
possibly use it, but first consider all the points outlined.
You can use the ideas in the Web page that you like. Copyright
only protects the form in which the idea is being expressed, it does not protect
the idea itself. For example, while you cannot copy this article, the ideas
that it contains can freely be “copied". After all, I “copied"
the idea from various sources myself!
Along the same lines, you can safely use the ideas in other
people's written words, Web page layout or arrangement, etc.
A related point is that where there is only one way of expressing
an idea, that particular form of expression cannot be protected by copyright
in Australia. For example, the image icon of a letter box or envelope that is
commonly found on Web pages is probably not protected by copyright, because
there is really only one way of drawing something that people would recognise
as a letter box or envelope.
Yes, copyright law applies on the 'Net as much as it does in
"real" life. However, it is doubtful whether it can be effectively
enforced. You could possibly disregard the copyright law and copy any material
onto your own Web page. And you may never be caught (particularly if, like my
Web page, yours is rarely accessed by anyone and is non-commercial.)
Don't get me wrong, I am not suggesting that you suggesting
that your should ignore law. I am merely pointing out a flaw in the existing
copyright system.
Note that the information contained in this article is accurate to the best of my knowledge. It covers only copyright law and other laws may also apply. This article is not intended as legal advice. If you are in any doubt, you should seek advice from a qualified legal person.
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