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Monday, July 13, 2020

Copyright on the Web
May 1997

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).

Questions and myths

1. Is Web material protected by copyright?

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.

2. Can I use the material if it is protected by copyright?

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.

3. What if I modify the copyrighted material? Can I do that?

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.

Moral rights

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.

4. What if I only copied a small portion of the material?

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.

Use caution

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.

The reality

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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