By Dianne Speakman
  Corporate Relations Manager, Copyright Agency Limited

One of the fabulous things about the Internet is that there is so much available for free. One click and it's saved on your hard drive. Naturally, we all think that if it's on the Internet and it's so easy to download, then it must be legal to use it, right?

Unfortunately, the answer is no. Just because it's there for you to read or look at for free, or because technology means it's easy to cut and paste or download, doesn't mean that you have a carte blanche to do what you want with it. That's because creative works such as images or stories are protected by the unfashionable concept of copyright.

The latest mantra is that copyright is dead in the digital age, that it's been made redundant by technology. Not so. In fact, the Australian government has recently changed the copyright law in Australia as a specific response to the new technologies.

Back to basics

Let's go back a step. What is copyright and why should you care about it?

Copyright is a form of intellectual property protection covering, for example, literary, artistic, and dramatic works as well as music and film. It is not ideas but their expression that are protected by copyright law, and the protection is automatic once the work is created (which means you don't have to register it).

In Australia, copyright law is set out in the Copyright Act 1968 and in case law interpreting the Act. The law gives copyright owners exclusive rights to do certain things with their material. These rights include the right to publish, perform, translate, and reproduce the work, and to communicate the work to the public (for example, by broadcasting a work or by publishing it on the internet). The purpose of copyright is to protect creative works from being used without the agreement of the owner and to provide an incentive for creators to continue to create new materials.

Essentially, the principle is that the copyright owner gets to decide when and how their works are used, and whether or not they want to get paid for that use. For example, just because they write an article for a print version of a magazine does not automatically mean that they agree to that story being published in the online version. That's because their works are considered to be property - not 'real' property like a car or a house, but intellectual property, like a patent or a trademark.

That's the legal stuff. But why bother with it? It's seen as a hindrance, the law is complex, you can't find the person who has copyright in the work to ask their permission, and who's going to find out anyway? On the other hand, if you write or take photographs for publication (including on the internet), then copyright protects what you do. It gives you, as a creator, rights over how your work is used. Just as you would like your rights respected, you need to respect the copyright of others. So how do you do that?

The general principles

In general, the safest things to do is assume that everything requires permission before you use it, and then start to look for anything that might qualify this. For example, if you want to use an image from the Internet, check the home page of the website for a copyright statement, which will often say whether or not you can use the work and if so in what way.

Most publications also carry a copyright statement, usually on the same page as the publisher's details (which is the page immediately after the title page in a book).

 The statement might say you can reproduce the work or part of the work, provided that you don't sell it. On the other hand, they might say you can't use it at all without permission (often expressed as "all rights reserved"). If you're unclear, always contact them and ask. Never assume that it's OK unless the website or publication explicitly says so.

 This means that you can't reproduce extracts from books or magazines or newspapers, or cut and paste from a website unless expressly stated by the copyright owner. Likewise, you can't scan and subsequently use an image from a book, magazine or journal without permission (or right-click that attractive photograph on someone else's website and save it for use on your own!) unless expressly stated.

 The other time this doesn't apply is if the publication or image is out of copyright.

"Out of copyright" material

In Australia, copyright usually lasts for the life of the creator plus another 50 years after their death. In the USA, copyright lasts for the life of the creator plus 70 years. The USA also allows copyright to be extended beyond this period. After this period, copyright in the work expires and therefore you don't need permission to use the work.

However, in order to know that copyright in the work has expired, you have to know whether or not the creator is dead and how long ago they died, and, if the creator was American, whether or not the copyright has been extended. You can't always tell this from when a book was published or from when a photograph was taken. And to complicate matters, a photograph in a book may be out of copyright, but the book itself remains in copyright.

Some compilations of images (for example clip art) are explicitly identified as being "copyright free". This means the work is either out of copyright or that the copyright owner has expressly decided to give away the material for free.

As before, it's safest to ask permission if you're not sure.

Getting permission

If you want to ask permission to use a work, the best place to start is the publisher. They may have the copyright in the work, or they can point you in the right direction. You need to keep in mind that the copyright owner is not required to give you permission to use any of their material, and if they do they can set whatever terms they like.

Often the terms of use vary according to what you want to do with the material. If you are using it for teaching or for some purpose where you're not going to make a profit, then many copyright owners are happy to allow you to use the work without charge. However, if you're planning to sell the work, they may wish to charge you for the use (you're making a profit out of their work, so why shouldn't they?).

What if I don't get permission?

If you don't get permission to use someone else's copyrighted material and go ahead anyway, you leave yourself open to being sued for compensation. The copyright owner can also apply for an injunction to stop you from distributing the material or even have it destroyed.

… and add a dash of moral rights …

The Australian government passed legislation in late 2000 introducing what are known as moral rights. These rights relate to a creator's reputation in association with his or her work and generally last for the same period as copyright.

Moral rights include the right to be attributed as the creator of a work (for example, as the author, photographer or artist), the right not to have authorship of a work falsely attributed, and the right of integrity of authorship.

This means that authors can take legal action if:

" they are not attributed as the author or someone else is falsely attributed; or

" their work is subjected to derogatory treatment (that is, some form of alteration that damages the creator's honour or reputation).

So, at the risk of being repetitive - ask first!

Why care?

The bottom line is that if you infringe someone's copyright or their moral rights, you leave yourself open to being sued or having your work destroyed. Sounds a bit harsh? Put yourself in their shoes - that text or image you use could have been a labour of love for someone, and the result of a lot of hard work. Should you be able to gain an advantage based on someone else's hard work? Or worse, how would you feel if you discovered your pride and joy had been used or altered in some way without you knowing?

Copyright protects the expression of ideas. You can have the same idea, but each expression is different (Monet certainly thought so - how many paintings of water lilies did he make during his life?). Copyright protects the creative expression of your ideas. Respect the expressions of other people.

What is Copyright Agency Limited?

Copyright Agency Limited (CAL) is a member-owned copyright management company which administers the right of authors, visual artists and publishers to reproduce their work and the right to communicate their work to the public.

CAL acts as a channel between copyright owners and users. We license organisations to copy or communicate literary and artistic works, collect a licence fee or royalty, and then distribute those fees to the authors and publishers who own the copyright. CAL licences a range of organisations including schools, universities, TAFEs, government, corporations, associations, press clipping agencies and document delivery services.

Since 1989, CAL has distributed over $150 million to thousands of Australian authors and publishers for the copying of their work. Membership of CAL is free and is open to anyone who owns copyright in literary or artistic works.

For more information, contact CAL on (02) 9394 7600, email us at info@copyright.com.au , or visit our website at www.copyright.com.au

This article has been prepared by Dianne Speakman specifically for ASCCA. It is an edited version of an article that first appeared in Computer Craft magazine in May 2001. See review of Computer Craft Magazine on the reviews page of this website.

Jan 2002