December 5, 2016 | Maddalena Rinaldi

We all know the important role a great website plays in the success of any business. Your website should be carefully planned to ensure it becomes a positive business tool and does not open your business up to any liability.

This article aims to present the main issues surrounding copyright and your website.

 

  1. Who owns the website? Me or the Web Designer

So you have hired a web designer to build your fantastic new website. Before the designer gets started you need to make it clear who will own the copyright in the site. It makes sense you that if you pay for the site then you will own it. However this will all depend on what agreement you have in place with your designer. Most web agencies and freelance designers will have a standard agreement assigning all copyright in the site to you, the business owner. This is important as it means that you have full control over the site and can make any necessary changes without requiring the permission of the web designer.

 

  1. What elements of the website are protected by copyright?

While the website as a whole is not protected by copyright, the various elements contained within the site are. These elements include;

  • photos, images and logos (known as ‘artistic works’)
  • videos and animation;
  • text (known as ‘literary works’)
  • sound recordings;
  • tables of words or symbols,
  • and musical works.

Each of the above elements are capable of being protected by copyright.

 

  1. What ‘rights’ does a copyright owner have?

Depending on the type of work, the owner of the copyright has certain exclusive rights.

Owners of copyright in Literary, dramatic, artistic and musical works have the exclusive right to:

  • reproduce the work;
  • make the work public for the first time; and
  • communicate the work to the public.

Owners of copyright in literary, dramatic and musical works have two additional exclusive rights:

  • to perform the work in public; and
  • to make an adaptation.

Owners of copyright in films, sound recordings, broadcasts and published editions have the exclusive right:

  • reproduce the material;
  • showing films and playing recordings in public;
  • transmitting films and sound recordings to the public using any form of technology; and
  • rebroadcast television and sound broadcasts.

 

  1. When can I use another person’s works without their permission?

Copyright protection is automatic upon creation and reduction to material form. This means that you should assume that anything that you want to use on your website, and that has not been created by you will require permission to use.

There are a few exceptions to copyright protection. Firstly, copyright protection does not exist forever. After a certain amount of time a work will enter the public domain. This means it will be free to use. For example, copyright in a musical work is protected for 70 years after the death of the composer. After this time, the work enters the public domain. You should be aware that the duration of copyright differs according to the type of work that it is.

The other exceptions are set out in the Copyright Act 1968 (Cth) and fall under the category of ‘fair dealing’. These include using the a portion of the work for the purpose of reporting the news or for the purpose of parody and satire. Each of these exceptions are limited and professional legal advice should be sought if you are thinking about relying on these exceptions.

 

  1. Do I need permission to use copyright protected material?

If you did not create the work yourself and it is not in the public domain or does not fall within an exception to copyright you will require permission to use any work you would like to include on your website.

 

  1. How do I obtain clearance to use copyright protected material?

The best way to obtain permission is to contact the copyright owner directly. Remember that in some cases the copyright owner and the creator may be two different parties. This may require some detective work (and some google searching) to track down the contact details of the owner. Send the owner an email or a letter explaining the work that you would like to use and the way in which you would like to use it. Ask the owner to provide permission for this use. The owner may request a license fee for the use of the work. It is best to get any permission for use in writing.  An email will suffice in most cases. If you wish to have the exclusive right to use a work on your website or if you wish to have the copyright in a work assigned to you, the copyright owner must sign a written agreement.

 

  1. What about ‘Moral Rights’

Moral Rights are specific rights granted to the creator of the work. There are three Moral Rights:

  • The right to have the creator’s name attributed to their work when it is used;
  • The right not have the creator’s work falsely attributed to someone else; and
  • The right not to have the creator’s work treated in a derogatory or prejudicial manner.

This means that you will either need to attribute the work to the creator or get a Moral Rights waiver signed by the creator. It also means that you need to be careful modifying someone else’s work. For example if you take an artwork and crop it so you only display one part of the work, the creator may see this is derogatory treatment of their work and may have a claim against you for Moral Rights infringement.

 

  1. Linking to other websites

As a general rule there is no issue with linking from your website to another website. The main thing you should be careful of is linking to websites which infringe upon another party’s copyright. This is because you may be seen to be authorising such an infringement. This is illegal under the Copyright Act.

 

  1. How do I protect the copyright in my website?

As previously stated, copyright protection is automatic. One thing you can do to help protect your copyright is provide a ‘Copyright Notice’ on your website. A Copyright Notice sets out the permitted uses of the site and provides contact details for permissions and the reporting of infringements.  You can also include the copyright symbol © with the name of your business and the year the website was created. For example © 2016 Sanicki Lawyers.

 

  1. Copyright infringement

Copyright is infringed when a “substantial part” of a copyrighted material is used without permission of the copyright owner. The copyright owner may be entitled to take civil action against the infringer and obtain damages or stop the infringer from using the work. ‘Substantial part’ is defined an important, distinctive or essential part of the work and does not necessarily have to be a large part of a work.

 

The purpose of this article is to give general introductory information only. If you require advice in relation to your particular situation, please contact Sanicki Lawyers on 03 9510 9888 or hello@sanicki.com.au.