Katherine Giles is a former Solicitor at Arts Law
Everyone these days either seems to be blogging, reading blogs or raving about a great blog. But what is a blog? A blog is an online web-based publication, web log, diary or newsletter that is placed on a website. There are a number of legal issues that bloggers should be aware of.
When you create your own blog you will be creating copyright protected material, but you may also want to use material that is owned by someone else. It is always a good idea to assume that a work is protected by copyright, until you are able to confirm otherwise. Don't assume that just because you find something on the internet that you can use it.
In Australia, under the Copyright Act, copyright protection is automatic (there is no registration system) and protects original:
- literary works (e.g. written works such as the content on your blog, computer programs, compilations, novels, screenplays, song lyrics);
- artistic works (e.g. paintings, drawings, photographs, maps and plans);
- dramatic works (e.g. choreography, screenplays, plays);
- musicals works (which are separate from the sound recording or the lyrics);
- films, sound recordings, broadcasts and published editions.
The owner of copyright in a work also has a number of exclusive rights, including, for example the right to reproduce, and to communicate the work to the public (meaning broadcast or place on the internet).
The general rule is that the 'creator' of a literary, artistic, dramatic or musical work and the 'maker' of a film, sound recording, broadcast or published edition will be the copyright owner. There are exceptions to the general rule in situations where the creator is an employee, is commissioned to create the work, is a freelancer, or if the work was created under the direction and control or first published by the Government.
You also need to take into account the copyright duration which is generally lifetime of the creator plus 70 years after their death (film, sound recordings, broadcasts and published editions are different). If you are unsure who the copyright owner is, or whether the copyright duration has expired, you should seek further legal advice.
How does this affect my blog?
This means that if you want to use something and it is owned by someone else, and the copyright duration has not expired, you need to get their permission. You don't necessarily need a written agreement with every single contributor to your blog – verbal permission is fine – but if you have something in writing then everyone is clear on the terms of the licence (permission).
Can I use quotes on my blog?
Short titles or slogans, words and names are generally too short to attract copyright protection. You can also use quotes which are not a substantial part (defined as an essential, distinctive or important part) of the original literary work or if the literary work which the quote came from is no longer protected by copyright. There are also fair dealing exceptions under the Copyright Act, which may apply when quoting (see below).
How does a Creative Commons license help?
Creative Commons is a non-profit organisation that offers a range of licences creators can use to allow others to use their work in certain ways. A copyright owner will usually reserve all their rights, but a creative commons licence allows the creator to reserve some of their rights. For example, a blogger or a creator of an artwork can apply an 'attribution licence' to their blog or their artwork. This means that others can reproduce, copy, distribute and display their work as long as they credit them as the author. For further information go to http://creativecommons.org.
Who will own copyright in my blog comments page?
If someone makes comments on your blog they are probably giving you an implied licence to display their comments on the comments page, and any other incidental reproduction that goes with it. However, to make things clearer you could add a creative commons licence to your blog stipulating that by posting comments they are agreeing to licence them to you.
Can I provide links to another website?
You should be careful when providing links to other websites. If there is another website you would like to provide a link to on your blog, you won't be infringing that website owner's copyright by providing a link. However, you should check whether the website you are linking to provides the ability to infringe copyright. For example, a website owner who ran an MP3 website was providing links to sites where users could download MP3's, and in doing so, infringe copyright in sound recordings. The Federal Court of Australia found that both the website owner and the Internet Service Provider were liable for authorising and encouraging infringements of copyright.
Can I use images owned by someone else on my blog?
You can only use someone else's images on your blog if:
- the copyright duration has expired;
- you have the copyright owner's permission;
- there is sufficient acknowledgement and using the image would be a fair dealing for the purpose of criticism and review, or reporting news; or
- the image is 'clip art'. Clip art is also sometimes referred to as royalty free work, copyright-free work, shareware, or freeware. For example, creative commons resources such as OpenPhoto. Before you use any of these you should make sure you read the terms and conditions, or the licensing terms.
Can I parody someone else's work?
Parody is a comment on, or ridicule of, an original work, produced by imitating the original work. There is no exception for parody in Australian law and to produce a work of parody, it is inevitable that the original work will be referred to or used in some way as part of the comment or ridicule. This means that if the parody substantially reproduces the original work, you will be infringing copyright, unless you have obtained the owner's permission for the parody use.
Can I count on 'fair use' as a defence if I use someone else's work?
There is no exception for 'fair use' in Australia. In the USA there is a 'fair use' exception based on the principle that the public should be entitled to freely use small portions of copyright protected work for the purposes of criticism, commentary, or parody. In Australia, the Copyright Act provides 'fair dealing' exceptions for the purpose of research or study, criticism or review, and reporting news. In Australia you need to carefully consider: the purpose and character of the use; nature of the copyrighted work; amount and substantiality of the portion; the effect on the potential market; and whether there is intent to plagiarise.
Can collecting societies assist me?
If the image, song or literary work you want to use on your blog does not have a creative commons licence, collecting societies may be able to assist you with arranging a licence to reproduce or use the works on your blog.
Other Issues to consider when blogging
This means ensuring that you do not infringe a creator's right of attribution, the right against false attribution and the right of integrity against derogatory treatment of the work. If you are going to use anyone else's work on your blog you need to ensure that you attribute them correctly and don't change the work or do anything that might be considered derogatory treatment of the work.
A trade mark is a sign used in business to indicate that goods or services come from a particular trader or service provider. For example, in your blog you may want to complain about a company. You can use the company's trade mark to refer to, criticise or discuss the company. It only becomes a problem if you are pretending to be the company or trying to sell competing goods and are therefore infringing the trade mark. For further information on trade marks see the Arts Law information sheet 'Trade Marks'.
While you are venting your views on your blog you should consider whether what you are writing is defamatory. Defamation is a communication that lowers the reputation of an identifiable third person, where the communicator has no legal defence. For further information see the Arts law information sheet 'Defamation'.
Right of Publicity
There is no 'right of publicity' in Australia. The right of publicity exists in the USA and is a claim that you have used someone's name or likeness in a commercial manner (for advertising, to sell a product or service, or as an endorsement) without their consent, and that this has damaged their reputation or caused them injury.
If you use someone's name, image or likeness in Australia, without their permission, they may be able to stop the unauthorised use of their name, image or likeness by relying on the law of defamation, the Federal Trade Practices Act and State Fair Trading Acts, or the law of passing off. For further information see the Arts Law information sheet 'Unauthorised Use of Your Image'.
While you are blogging you should keep the above legal issues in mind. You should also keep it in mind that whilst you are writing your blog in Australia it will be accessed by people in numerous legal jurisdictions, from the USA to India. For example, you should note that, for the purpose of defamation law, in Australia the courts have found that publication of material on the Internet occurs in the place where the material is downloaded and comprehended by the Internet user.
- Trade marks
- Defamation law (for material published after January 2006)
- Unauthorised use of your image