In Australia, copyright law is set out in the Copyright Act 1968. The Act has been regularly amended over the years to bring it up to date with modern technologies and concerns such as the wide spread use of the internet.

In respect of social media there tends to be a free for all attitude to the sharing of whatever appealing works can be found on the internet. This can be observed, in particular, in the case of images and articles from various websites which are copied and shared on blogs and popular websites such as Facebook, Instagram and Pinterest.

Ownership of copyright

Copyright protection is free and automatic from the time the work is first created, and, as you do not register for copyright in Australia, there no forms and no fees.

The general rule under the Copyright Act is that the first owner of copyright is the creator of the work, or the person responsible for making the sound recording, film, broadcast or published edition. There are, however, important exceptions to this general rule. In respect of employees where a work is made by an employee (not a freelancer) as part of that person’s job, the employer usually owns copyright. Freelance creators usually own copyright in whatever work they create. If you pay for work to be created you will generally not own copyright, although you will be entitled to use it for the purposes for which it was commissioned.  There are a number of situations described in the Act, where someone who commissions another person to create material for them will own copyright.

Protecting your copyright

It is not necessary to put a copyright notice on your work in order to ensure that it is protected by copyright in Australia, although it can prove a useful reminder to social media users. The copyright notice consists of the symbol ©, followed by the name of the copyright owner and the year of first publication. It makes users aware of who is claiming copyright and is the stated copyright owner. Sometimes the words “All rights reserved” will also follow the statement, or may be used instead of the copyright notice. This is not necessary under Australian law, or in most other countries, but again it makes it harder for the social media user to claim that they were unaware of the protection.

If there is a dispute about who was the true creator of work protected by copyright, it may need to be resolved by a court. Although there is a presumption that a person named in a copyright notice is the copyright owner this may not be case. A court would take into account all of the relevant evidence, including taking oral evidence from the creator and reviewing earlier drafts of the work.

Do you need permission?

Whether you need to have permission or not for social media use will depend on a number of factors such as the purpose for which you will be using the material. Unless a special exception or defence applies, you will generally need permission to use all or more than a “substantial” part of copyright material.There are a number of situations in which social media users can use copyright material without permission which fall under the category of the “fair dealing” exception.

Fair Dealing

There is no general exception for using copyright material simply because you think it is fair and fun to be able to share images, or because you are not making a profit and the use is purely social. The Copyright Act allows you to use copyright material without permission if your use is a “fair dealing” for one of the following purposes:

  • Research or study
  • Criticism or review
  • Parody or satire
  • Reporting news
  • Professional advice by a lawyer, trade mark attorney or patent attorney.

If your social media usage does not fit within one of these purposes you should seek permission from the copyright owner, rather than run the risk of infringement.

If you are reporting on news from a newspaper, or an article from some other periodical you are required to give “sufficient acknowledgment” of the writing, audio or image. Usually this is satisfied by including a hyperlink to the original work so that any user reading your blog will be aware of the creator or author.

Infringement

Unless a special exception applies, social media users who use copyright material in any of the ways exclusively controlled by the copyright owner – without permission – infringes the owner’s copyright. If your copyright has been infringed you may need legal advice about whether any partial use of your work is “substantial” before taking action. An entire image or article will, of course, be substantial.

If your rights have been infringed you may be entitled to demand one or more of the following:

  • An injunction to stop infringement
  • that copies of your material be disposed of or returned to you
  • that any master copies or plates used to make infringing copies be delivered to you
  • payment for the use of the work or the profits the infringer has made from your work

If you intend to seek payment you could consider what you would have charged if your permission had been obtained, for example, a standard licence fee.

What should I do next?

Generally, it is preferable for any agreements about copyright to be in the form of a licence agreement. You should seek legal advice before signing any document dealing with copyright, or before finalising any arrangements relating to copyright. Our lawyers at You Legal will be happy to advise you in this regard.

* This blog is for general guidance only.  Legal advice should be sought before taking action in relation to any specific issues.