Lindsay Johnston is a recent law graduate and was an Arts Law daytime legal volunteer during April – May 2007.
The huge increase in internet usage in the past decade means that it has become increasingly important to protect artwork placed online. Many people at some stage in their lives will use the internet to 'borrow', 'use' or 'copy' art to put on their website without realising that this could be copyright infringement.
As technology continues to change and increase the ways people communicate online, it is important that artists, publishers and users of websites and other associated media understand the copyright issues surrounding use of visual art works online.
Arts Law has recently produced the best practice guidelines Displaying Visual Art on the Internet (Guidelines) in response to the need to codify the practices associated with displaying and communicating visual art on digital media in Australia.
Purpose of the guidelines
The guidelines were developed for those using the internet as a medium to reproduce and/or display visual art, including website owners and developers. The Guidelines explain the laws concerning the communication and reproduction of visual art; the aim is to assist website owners and developers with meeting their legal obligations regarding communication and reproduction of visual art online, as well as protecting the rights of the artists whose work appears on their sites. Also discussed is the endorsement of responsible practices and the importance of supplying useful procedures to help manage and deal with copyright infringement.
Intellectual property rights
Under the Copyright Act in Australia artistic works are automatically protected by copyright as soon as they are created. The owner of copyright in an artwork has the exclusive right to reproduce, publish and communicate that work to the public (for example, broadcasting or putting it online). The copyright owner may licence or assign these exclusive rights to others.
One of the biggest problems with websites is that people assume that everything online is there with the consent of the owner. That can sometimes be the case, but occasionally the material has been pirated without the consent of the owner. This results in potential copyright infringement. Copyright can be infringed in many ways including printing, downloading, saving to hard drives and emailing artworks without permission. The only way people can receive permission to use material on a site is through the express or implied permission of the copyright owner. Express permission is usually given through terms and conditions or a statement on the website giving permission for the material to be used in certain ways.
Problems with reproducing visual art online
There are several examples of particular websites where art work is shown online. For example, commercial art galleries or auction houses usually have a website containing images of art works they exhibit or sell. These galleries and auction houses usually have a relationship with the copyright owner, but it is important to make sure that the galleries have the requisite permission to reproduce the art work on their website. The National Gallery of Australia (NGA) charges a fee for the reproduction of images from its gallery in which it owns copyright. For the images in which it does not own copyright, it provides the last known address of the copyright holder so permission can be obtained by the potential user. This permission has to be supplied to the NGA before the material is released.
There are other websites that generally have no relationship with the owner of copyright in the art but display, reproduce and communicate the art online. These include art blogs and auction sites like eBay. These types of sites may be infringing copyright as they do not have the permission of the copyright owners to reproduce these artworks. They should make sure they have copyright clearance from the copyright owner. These websites are also responsible for taking practical steps to ensure infringement does not occur otherwise they may be liable for authorising the infringement.
The Guidelines outline the three matters to be taken into account when deciding liability for authorisation of copyright infringement, including:
- what the site has done to prevent the doing of the act in question, such as downloading copyright protected material or reproducing it;
- the nature of any relationship existing between the person who authorised the infringement and person who did the act concerned; and
- did the website owner take reasonable steps to prevent/avoid the doing of the act.
Obtaining clearances involves two areas: copyright and moral rights. The first step in obtaining a copyright clearance involves identifying the owner, and secondly, receiving permission from the copyright owner to communicate his or her work to the public (reproduce their work online). Permission can only be granted by the copyright owner. Problems can arise when the owner of the artwork is not the owner of the copyright. This is likely when a gallery owns a painting but the artist still owns the copyright. Sometimes the gallery may be able to help in finding the copyright owner.
The Guidelines make it clear that it is important for content hosts (website providers) to make sure that any content providers have acquired the relevant permission to upload images of art work onto their blogs. The Guidelines suggest that one way to do this is to require content providers to enter into a warranty, indemnity or disclosure agreement where they promise they will not infringe any rights of any third party in displaying images on their website. Under this agreement the content host should also be able to suspend the provider's access to uploading images to the site if the provider breaches any agreement, or if reproduction of images on the site would open the content host to liability.
Moral rights are different to copyright; they belong to a person only. They cannot be waived but the holders can consent to infringement of their moral rights in certain circumstances, although the Guidelines recommend that artists are not asked to consent to infringements. For those reproducing visual art online it is important that they ensure the moral rights of the artist are kept intact. Respecting the creator's moral rights involves crediting the artist (right to attribution), not crediting the artwork to someone who is not the artist (right against false attribution) and not using the artists work in a way which would damage their reputation (right of integrity).
Considerations when creating a visual art website
Technological considerations regarding image and their display
The Guidelines suggest several ways to help prevent the unauthorised use of visual art online. These include keeping image files to a minimum display size, displaying images in actual size, using copy protection, encrypting large images and using photo watermarking or digital watermarking.
Responding to unauthorised use
According to the Guidelines, developing an infringement notification and take down procedure and policy is also important. It is recommended that this require that individuals notify the web site or content host of any copyright infringements and there is a procedure to handle infringement notifications. The procedure should contain contact details for the web site owner or content host and the information that is needed for a notification, such as a statement from the copyright owner, identification of the work and a copy of the allegedly infringed art work. The web site owner or content host should also provide an undertaking to remove the art work image if it is found to be infringement and inform the copyright owner of this. The Guidelines also recommend that as soon as the web site owner or content host is informed of any infringing material they should immediately execute the site's takedown procedure.
If someone you know is thinking about setting up a website and using artwork on their website, ensure they read the best practice Guidelines first to guarantee the artist's rights are not infringed and they get the credit they deserve for their hard work.