The Arts Law Centre of Australia is contacted from time to time by artists and filmmakers who discover that their work has been reproduced by the media. We receive complaints like:
- “I was thrilled to see my photographs in a magazine until I noticed that I was not named as the photographer.”
- “I placed a short clip on the internet and I later saw it shown on the nightly news. Can the TV station just do this?”
- “A photograph of one of my paintings has been reproduced in the newspaper but no one asked me for permission first.”
What are the rights of a copyright owner?
In Australia, the Copyright Act gives copyright owners the exclusive right to deal with their copyright material in certain ways, including the right to reproduce it, place it on a website, transmit the material electronically or make it available to the public through a public performance.
Infringement of copyright
Generally, copyright is infringed when someone uses all, or a substantial part, of copyright material in a way that is exclusively reserved to the copyright owner, subject to the copyright owner providing permission. This is the case unless a defence or exception to copyright infringement is available.
Fair dealing for the purpose of reporting news
One such exception to copyright infringement is if the use of the copyright material occurs in the context of reporting news; the fair dealing exception for the purpose of reporting news. This article examines when that exception is available to journalists and what to look for if your work is reproduced by the press. Other fair dealing exceptions include use of copyright material for the purpose of ‘criticism or review’, ‘parody or satire’ or ‘research or study’, but we do not intend to examine these exceptions here. (See The Parody and Satire defence: what do we make of it so far?)
A ‘fair dealing’ with a literary, dramatic, musical or artistic work is not an infringement of copyright in the work if it is used ‘for the purpose of, or associated with, reporting news’. A similar exception applies to the use of an ‘audio-visual item’. An ‘audio-visual item’ includes a sound recording, a cinematographic film or a sound or television broadcast.
Under this exception, news can be reported in the following mediums:
- in a newspaper, magazine or similar periodical provided that a sufficient acknowledge is made; or
- by means of a communication or in a cinematograph film. A communication covers material made available online or electronically transmitted in some way.
What is sufficient acknowledgement?
For the acknowledgment to be regarded as ‘sufficient acknowledgement’ it will need to identify the author and the work by its title or other description. If sufficient acknowledgement of the artist is not made (and the use of the material is in a newspaper, magazine or periodical), the journalist cannot rely on the exception.
What can be categorised as the ‘reporting of news’?
In considering whether a work has been used for the purpose of reporting news, it will be important to consider whether the main purpose for the use of the work was for the purpose of reporting news, or associated with, reporting news. If it seems that the primary purpose for the use of the work is something other than reporting news, then it will probably fall outside the exception.
The Courts have held that the reporting of news:
- includes the reporting of recent events and can extend to information relating to past events not previously known;
- is not restricted to the reporting of recent events, provided there is a genuine news component;
- can relate to long term reviews or commentary.
Is the use of the work or audio visual item a fair dealing?
Assuming the ‘purpose test’ is satisfied, it is still necessary to establish that the use of the work or audio-visual item is a ‘fair dealing’.
The legislation does not provide any assistance as to the types of matters that should be considered in determining whether or not there is a fair dealing in the context of ‘reporting news’, although the Courts have provided a number of different statements about the types of principles to consider. Essentially, whether the use of copyright material is ‘fair’ will depend on the factual circumstances of each case. For example, if the use of the copyright material somehow undermined the copyright owner’s ability to exploit their own work for financial gain this might be a factor that weighed against a finding of a ‘fair dealing’.
In relation to musical works, the legislation specifically says that ‘the playing of a musical work in the course of reporting news by means of a communication or in a cinematograph film is not a fair dealing with the work … if the playing of the work does not form part of the news being reported’. This means the use of musical work will not be covered by the exception if the music is used as background music and is unrelated to the news being reported. Whilst it is not expressly stated in the legislation, similar reasoning can also be applied to the use of other works or audio-visual items that feature within a news report, but do not form part of the news being reported, or cannot be said to be associated with the news being reported.
It seems that the process of determining whether something is a fair dealing will necessarily be a little bit circular. Something is less likely to be regarded as a fair dealing for the purpose of reporting news if you struggle getting it past the ‘purpose test’.
An example of how the exception works – photographs in a news report
A photograph is considered an ‘artistic work’ under the Copyright Act and it is subject to copyright protection. Normally if someone wants to reproduce a photograph that they did not take, the person is required to get permission (or obtain a licence) to use the photograph before doing so. The copyright owner may insist on the payment of a fee before providing permission. If the person went ahead and used the photograph without permission, the photographer (assuming they are the copyright owner) could commence action for infringement of copyright, unless a defence or exception to infringement is available, such as the ‘news’ exception. For example, let’s say the photograph is used by a journalist for the purpose of a news report in the newspaper. Assuming the way the photograph is used can becategorised as a ‘fair dealing’, there will be no infringement of copyright provided the journalist sufficiently acknowledges the photographer and the work.
Why is there such an exception?
What is the rationale for the fair dealing exception for reporting news? Essentially, it is thought to be in the public interest to reduce obstacles to, and facilitate, the reporting of news. If this exception did not exist, the media would need to obtain permission to use the copyright material, which would slow the process and possibly remove the newsworthy element of the news report. Permission might be contingent on the payment of a fee adding to the cost of reporting. Alternatively, the copyright owner could simply decline permission to use the material with the effect of restricting information that would be made available to the public in the form of news.
The right to attribution
There are also separate provisions in the Copyright Act dedicated to ensuring creators receive appropriate acknowledgement and credit for the works they create. The ‘right to attribution’ is classified as a ‘moral right’ under the Act. It is a personal right, rather than a proprietary right. As such, it is not contingent on the creator still owning (or having ever owned) copyright in work they created. In the context of media reports, the ‘right to attribution’ exists in addition to the requirement of ‘sufficient acknowledgement’ under the fair dealing for the purpose of reporting news exception. Under the moral rights provisions, the identification of the creator must be ‘clear and reasonably prominent’ and be capable of providing sufficient notice of the identity of the creator.
In short, if you create work that is protected by copyright and it is used by the press (in a way that would normally be considered an exclusive right of the copyright owner), you have a right to be attributed as the creator of that work. If there is no such attribution, and there is no defence available, there will be an infringement of your moral right to attribution.