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SUBMITTING MATERIAL ONLINE: ISSUES IN COPYRIGHT

The Internet has given rise to numerous commercial or non profit information websites that allow users to post contributions such as articles, guides, videos, photographs and other media. These websites are extremely popular and receive hundreds of thousands of hits as a result of the services that they provide to the online community, which, of course, could not be possible without the contributions of its users.

Online contributions fall under the Copyright Act 1968 and it is important for both contributors and website owners to fully understand and appreciate the implications that the law has with respect to copyright ownership. Whether contributions include photographs, articles, reports, critiques, music or video streams the copyright owner is the individual or company who has the right to dictate how and when the material shall be used and who shall use it.

Copyright is designed to protect the expression of an idea and not the idea itself.  In Australia no registration is required for copyright to subsist. Copyright rights arise on the creation (within the meaning of the Copyright Act 1968) of any of the following categories of subject matter: original literary, dramatic, musical or artistic works; sound recordings; cinematograph films; sound and television broadcasts; and published editions of works.

Before contributors submit material online, they should be aware of the types of agreements they may encounter. One such agreement is a licence. This occurs where a contributor, who is the copyright owner, permits a website owner to use the material under certain conditions.  Therefore, the contributor retains ownership of the material and can either authorise its use for a specific period of time or grant a perpetual licence that enables the website owner to use the material indefinitely until the licence is terminated.

Licences can be either exclusive or non-exclusive. Under an exclusive licence, the contributor is prevented from using or licensing the material to another third party. The website owner, to the exclusion of other parties, is therefore the sole recipient of the material. An exclusive licence can only be valid if it is written form: see s 10(1) of the Copyright Act 1968. On the other hand, a non-exclusive licence allows the contributor to use and licence the material to other interested third parties. This is the preferred option for contributors as it maximises their exposure and profits generated from the use of their material.

Under a non-exclusive licence arrangement, the website owner is not permitted to sue a third party for copyright infringement. This right solely rests with the contributor who retains copyright ownership. However, under an exclusive licence, s 119 of the Copyright Act 1968 allows the website owner to sue third parties for copyright infringement, except for the contributor. A website owner who is the exclusive licensee may, however, have a court action against the contributor for breach of the licence agreement, if the contributor grants a licence to a third party or uses the material contrary to the licence agreement.

Another important agreement is an assignment of copyright agreement or deed. An assignment of copyright occurs when the copyright owner passes all or partial rights of ownership in the material to another party. This means that once the creator of the material and the other contracting party sign the agreement, the contracting party becomes the new owner of the copyright material. The agreement may limit the extent of the assignment by including clauses that limit its use with respect to time and geography.

Under s 196 of the Copyright Act 1968, an assignment of copyright is required to be in writing. This is important for contributors who decided to voluntary upload material on to websites, where no agreement exists. If no such agreement or deed exists between a contributor and website owner, ownership of the material shall remain with the contributor.

A non-exclusive licence may be implied by law, if no licence or assignment agreement exists. The courts will, of course, focus on the intention of the contributor and website owner before deciding on whether a licence may be implied. Importantly, the courts will not infer that the material has been assigned to the website owner unless the assignment is in writing.