It can be really upsetting to find that your creative work has been used by someone else online without your permission. Unfortunately, it can be very easy to copy something online. Copyright infringement happens often.
Many people think that if something is online, or if they are not making money, they are free to use a copyright work. Think again!
So how can artists protect themselves and their works? Let’s explore some practical tips for dealing with online infringement in Australia.
Tip #1 Get ahead of the game
Unfortunately, it can be hard to put a stop to infringement once it starts. Our first tip is to take steps to prevent infringement before it happens. This can be much more effective than trying to put the cat back in the bag.
There are lots of steps that you can take to protect your work. Here are just some of them!
- Upload low-resolution images, or low quality recordings/video, telling users that a higher quality version is available for purchase.
- If uploading images, add a visible watermark.
- Use digital watermarking or digital fingerprinting to add hidden information to your files.
- Let people know you are the copyright owner by using a © notice and providing contact details, stating that people should contact you for permission to use your work.
- Read the fine print: see Tip #3.
Tip #2 Ask: Is there really a copyright infringement?
The first question to consider is whether there is an infringement of your copyright. Ask:
- Are you the copyright owner?
- Did you as copyright owner give permission for the use of the work?
- Does the use of the work fall within affair dealing exception or is there a defence available?
The internet is global, but there is no global internet law. The laws of another country, or multiple countries could apply to something done online and the laws of each country are different. Australian copyright law applies to acts of infringement in Australia.
In this information sheet, we are only looking at Australian law. Information you find online may not be correct or may not apply in Australia.
Tip #3 Read the terms and conditions
Yes, we mean it. You should read that annoying small print before clicking ‘I accept’.
Where you upload your work to a website, you will usually give the website owner a licence or permission to use your work. Sometimes, that licence can be broader than you would expect. This means others may use your work in ways you have not anticipated and you could not claim copyright infringement.
Website terms and conditions will also often ask you to promise that you will not upload material that infringes copyright. They will also allow the website to take infringing material down and will have a process to request removal of infringing material that someone else has uploaded – see Tip #6.
Tip #4 Make limits clear
If you sell or give permission to someone to use your copyright work make sure the recipient understands what they can do with your work. Disputes often arise where someone uses a copyright work in a different way than what the copyright owner intended. To avoid this, make sure the scope, or limit, of the permission to use your work is clear.
The best way to do so is to have it in a contract . It is best for a contract to be in writing, so that everyone is clear on what has been agreed. This might be in a contract of sale or in website terms & conditions for example. You can read more about contracts here and licensing your copyright here.
Tip #5 Monitor the internet
Regularly check the internet for infringements. Stopping an infringement early can stop things snowballing. What can you do?
- Run an internet search for your name and the title of your works and set up alerts.
- Run an internet search for the content of your written work. Use “quotation marks” to search for exact phrases.
- If you are a visual artist or photographer, run a reverse image search to try to find out if there are copies of your visual work online.
- Some big websites have systems that allow you to ask them to monitor their content for you. An example is YouTube’s ContentID. However, often you need to be the owner of many copyright works to use these systems.
Tip #6 Send a request to stop!
If you think someone is infringing your copyright, you can send a request that the infringement stop.
Before sending any request to take down material, you should make sure the person does not have a licence or permission, a fair dealing exception or other defence. We also recommend seeking legal advice first. It is important not to make ‘groundless threats’ of infringement proceedings, which can create a new set of legal problems.
A request to stop infringement can be done by sending an email, direct message or letter, sometimes referred to as ‘letter of demand’ or ‘cease and desist letter’. Arts Law have a simple template here.
Many websites that host user generated material have a ‘takedown’ process. These include, YouTube, Facebook, and Instagram. You can tell these websites that you are a copyright owner and ask them to remove material from their websites. You should read through their policy and make sure the information that you provide is correct. Websites that have a takedown process will usually also have a process for objection known as a counter-notification. You can read more about takedown notices and look at a template takedown notice here.
Tip #7 But who do I send my letter to?
It is not always easy to work out who is infringing your copyright. Websites may not have clear information on who runs the website, and people who are infringing copyright often try to hide who they are. lawyer can assist you to work out the best place to send a request to. Places to look include:
- Contact details on the website or social media page: Is there a phone number, contact form or email address on the website? Can you send a direct message through social media?
- Runa “WhoIs” or “WhoIs AU” search for the domain name. Look for the name of the Registrant and a contact email and name.
- Run search of a business name or company with ASIC. Look for information about who is operating the business.
Tip #8 Keep the evidence
Keep a copy of the information that you find about the infringement and infringer. This helps you if things cannot be resolved and the person operating the website is not being cooperative. This might mean printing the pages as a PDF or taking a screenshot of the information you collect of the infringement. Name, date and save your files.
Tip #9 Go to court or let it go?
The final resort for dealing with online infringement is to go to Court. You should only consider going to Court after you have taken other steps to try to stop the infringement out of Court.
Unfortunately, going to Court can be very expensive, stressful and time consuming. Australia does not have a small claims tribunal for copyright infringement (although this is something the government is looking into). So you should always think very carefully and ask for advice from a lawyer before starting a court case.
Taking into account the cost and stress of litigation, it may not be worth your while to go to Court. This leaves the final option – sometimes, you may decide to just let it go.
Tip #10 See the silver lining and make some money!
Another option is to work out a deal with the person who was infringing your copyright. For example, you might be quite happy for them to keep selling prints of your photograph, as long as you get a share of the money. You grant them a licence to use your copyright, in exchange for some money – a win-win!
Get some legal advice
A lawyer can provide you with specific advice for your circumstances to help you to work out the best way forward. You can submit a legal query to Arts Law here. You may be able to receive free legal advice from Arts Law if you are an artist or low cost advice if you are an arts organisation.