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Blogging and copyright myths

Lately I have run into professional (and not so professional!) bloggers advising others when and how they can use other people’s images and articles. Do some or all of these statements by bloggers, and other online users, sound familiar to you?

  • “Provided I credit the copyright owner when I copy an image or article, I’m in the clear.”
  • “So long as I don’t mislead people by pretending it’s my image or article, it’s OK to copy.”
  • “Everyone does it, and I’ve never heard of anyone being sued for copyright infringement, so it must be OK.”

To be clear, these aren’t comments made by bloggers purposely encouraging others to infringe copyright. Indeed, I have heard them made by mostly well-intentioned bloggers thinking they are doing the right thing. So let’s break these comments down a bit and see why they are misguided.

Copyright basics

Copyright laws protect a variety of original works, including literary, artistic, dramatic and musical works. It also protects films, sound recordings, broadcasts and published editions. Blogs often refer to or use literary works (such as an article), or an artistic work (such as a photograph or illustration), or a musical work.

Generally, the “creator” or “maker” of a work is the copyright owner, but exceptions can apply such as when a copyright work is created by an employee, or subject to a commissioning agreement. In Australia, copyright protection is granted automatically upon creation of an original work and does not require registration.

The copyright owner has a number of exclusive rights, including the right to reproduce a work, and communicate it to the public (which includes traditional broadcasting or putting a work on the Internet).

Moral rights

The creator of an original work also has moral rights that entitle the creator of a work to:

  • the right of attribution (credit);
  • the right against false attribution, and
  • the right of integrity against derogatory treatment of a work.

Copyright infringement and breach of moral rights

Reproducing (including on the Internet) a substantial amount of a copyright work without the permission of the owner will ordinarily infringe the copyright owner’s rights.

“Substantial” in this context isn’t just a matter of quantity, but quality. Even if a relatively small part of a work is reproduced, it may still be a substantial part if it is an important or distinctive part of the work.

In the case of images, more often than not, bloggers will reproduce the whole of someone else’s image, so substantiality is a given. In the case of literary works, such as someone’s article, whether or not a substantial part has been taken may be less clear.

In addition, many bloggers do not observe a creator’s moral rights, particularly the right of attribution.  It is important to remember, though, that attribution (or giving credit) is not an answer in itself to copyright infringement.

If a dispute was to go all the way to a court hearing, copyright infringement and breach of moral rights can lead to an order for damages (money payable to the owner), legal costs, and an injunction (a court order to not use the other person’s work).

“Fair dealing”

In Australia, an exception to copyright infringement is “fair dealing”, which may be available to a blogger who uses an original work belonging to another.

In order to rely on a fair dealing exception, a person must:

  • demonstrate that the use genuinely falls within one of the accepted uses referred to below;
  • using the image would be “fair” (discussed below); and
  • there is sufficient acknowledgement (credit) of the copyright owner.

Importantly, “fair dealing” only covers very specific instances of use. The most relevant to bloggers are likely to be:

  • review and criticism;
  • “reporting the news”; or
  • parody and satire (with some exceptions).

So what is “fair”? Basically, it depends upon the context and circumstances. Relevant factors might include whether a blogger is using the other person’s work for commercial purposes, and whether the copyright owner would have otherwise ordinarily have received license fees from that use. On the flip side, the mere fact that a blogger isn’t making a profit won’t necessarily make it fair.

It is important to be aware that the fair dealing provisions under the Copyright Act are limited, and are not an answer to every kind of use. Notably, “fair dealing” under Australian law is not as broad as the “fair use” defence under US law. I hazard a guess that some Australian bloggers are influenced by what they might have read about “fair use” under US law and assume it applies universally. This is not the case.

What does this all mean for bloggers?

In summary, if you are a blogger, you can only use someone else’s copyright work (eg an image, article or music) if:

  • copyright has expired and the work is now in the “public domain” (but note that copyright terms are generally very long, as much as the life of the creator + 70 years); or
  • you have the copyright owner’s permission; or
  • use of the image would be a “fair dealing” as outlined above; or
  • the work is offered under a licence that allows use, typically under a Creative Commons licence (but do check the terms because the terms vary from licence to licence).

Let’s go back now to the original quotes at the start of this post:

  • “Provided I credit the copyright owner when I copy an image or article, I’m in the clear.”

– It is important to credit your source for the purposes of both “fair dealing” and moral rights, but this is not an answer in itself. As described above, if the work is still subject to copyright, you either need permission, or it must fall within a relevant “fair dealing” exception.

  • “So long as I don’t mislead people by pretending it’s my image or article, it’s OK to copy.”

– The response is similar to the above. There are a whole host of different legal issues that might arise if a blogger pretends someone else’s work is their own (and will be the subject of a separate blog), but is is separate from the question of copyright infringement.

  • “Everyone does it, and I’ve never heard of anyone being sued for copyright infringement, so it must be OK.”

– Bloggers do get caught infringing copyright every day, but typically disputes are resolved by the infringing work being removed and / or a licence fee being paid. The reason why you don’t hear about court cases involving bloggers very often is simple: generally, the infringement is so clear cut and it simply makes no sense to try and defend the indefensible!

Blogging is a great way to communicate and share news and views about all manner of topics and issues, but it is certainly not immune from “real world” legal issues and risks. If you are a blogger, next time you wish to use someone else’s work, it is worth pausing and thinking about whether or not you have the right to do so. It can save a whole lot of grief down the track!

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This article is provided for general information purposes only. If you require assistance, please contact us to discuss obtaining advice relevant to your specific circumstances.

*Image used published on unsplash.com and licensed under CC0 1.0 Universal licence 

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