Click here for PDF of this article
Website Links and Copyright Infringement
Imagine you have decided to create your own My Space page. You spend time filling the ’About Me’ and ‘Who I’d like to Meet’ details, working out colour schemes and backgrounds, and any other touches that take your fancy. You then remember seeing a clip from your favourite movie on YouTube, and decide you would like that clip featured on your newly created page. You embed the movie clip into your website, effectively providing a link from your page to YouTube, where the clip is hosted. You sit back and admire the page, oblivious to the fact that in linking to the movie clip you may have authorised copyright infringement.
Under the Copyright Act 1968 (“the Act”), authorisation of copyright infringement involves either encouraging someone to infringe copyright, or to provide the means to infringe. In Australia, s 101 of the Act states that, in determining whether authorisation has occurred, the following matters will be taken into account:
- the extent (if any) of the person’s power to prevent the doing of the act concerned;
- the nature of any relationship existing between the person and the person who did the act concerned; and
- whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
The Federal Court ruled late last year that the owner of a search engine “mp3s4free.net”, which allowed users to locate and illegally download music files, and their internet service provider (ISP) had infringed copyright. The website did not actually host any copyright material, but provided hyperlinks to other sites where the copyright material could be accessed. The Court found that the owner of mp3s4free had authorised copyright infringement.
Does this mean that your MySpace page, which essentially contains a link to the video hosted on YouTube, could be said to authorise copyright infringement? The answer appears to be based on the context in which the link to infringing material took place. This is examined by the courts on a case by case basis.
In the case of the mp3s4free site, the court felt that users were being drawn to the site to obtain music illegally. In other words, the whole purpose of the site was based around copyright infringement. Users could use the search engine on the site and access music files via that search engine.
But would one video embedded on a MySpace page be viewed in the same way? The decision may come down to whether the video was incidental to or an integral part of the site. If the embedded video was the major drawcard for visitors to your site, it would appear that the court’s finding in the mp3s4free case would apply. However, an embedded video that makes up only a minor part of your MySpace page may not be viewed in the same way.
The issue of authorisation might also arise where links to music or videos are posted on a web forum. Say for example there is an online discussion forum based around a television show like Greys Anatomy, and someone posts a link to where current episodes have been illegally hosted on a separate website. The person who posted the link may be liable for authorising copyright infringement, but again the context of the posting would be a deciding factor.
Say for example the forum was only visited by people in the United States. The episode will have aired on free-to-air television before being made available online, and fans are likely to have watched the episode on television before logging on to the forum afterwards to discuss it. A link to an illegally uploaded copy of that episode may therefore not be the major drawcard to the website. However, the episode may not air in other countries, such as Australia, for weeks or months after it has aired in the United States. A finding of authorisation in the international context seems more likely, because the illegally uploaded copy may be the first chance people in these countries have of viewing the episode. An international fan base would arguably be drawn to the site to download the show before they discuss it on the forum. Therefore, while providing access to the copyrighted material may not be the sole function of the discussion forum, in an international context it could be said to be a significant part of its appeal.
The application of authorisation as it relates to hyper linking in Australia is still unclear. The mp34free case is subject to a High Court appeal as at the date of writing.
If you have any specific or general questions in relation to this article, please do not hesitate to contact us.
