Posted by Leonie Chapman on 08 May 2014
Australian copyright laws were last reviewed in 2006 – to catch up with technologies like digital music players and video recorders. The review left a lot of unanswered questions, particularly with the emergence of social media for both private and commercial use.
What does this mean for businesses and individuals who regularly distribute copyright materials over the internet, and will the proposed new ‘fair use’ copyright exemption help?
Internet and current copyright laws
Australian businesses and individuals strive to be innovative, but current copyright laws tend to discourage investment in new technologies with technical offences for common internet interactions.
Australia’s copyright laws were clearly not designed with the internet and social media in mind.
Unlike the United States of America, Australia doesn’t currently have a ‘fair use’ defence to copyright infringement that may allow for such internet activity. If use of copyright material does not amount to ‘fair dealing’ within the meaning of the Copyright Act, then you are not permitted to use it.
Putting it simply, social media marketing for your business could be in breach of copyright laws if you share an article from the newspaper on your Facebook page.
Consequences of breach of copyright
You may believe it is socially acceptable to ignore copyright laws given everyone else does. And, few people have ever been prosecuted for sharing or creating memes or videos, as court action is usually reserved for major offenders. However, it has been known to happen and you should be aware that it could result in significant fines or even jail time.
It is an offence to simply distribute an infringing item for the purpose of trade, or to an extent that it ‘affects prejudicially the owner of the copyright’. This could include a lot of your everyday internet uses on Facebook, Reddit, LinkedIn, Twitter and YouTube.
Proposed copyright reforms – fair use model
Will the possibility of a new flexible ‘fair use’ exception bring copyright laws in line with social media and internet use? We hope so.
Essentially the ‘fair use’ provisions, which are currently under consideration, will ask of any particular use of material – “is this fair?”
The fairness factors, which would be set out in the Copyright Act, aim to be more adaptive than the current method of copyright regulation.
While some social uses of copyright material may be ‘fair use’, businesses should note that sharing content outside the domestic sphere is less likely to be ‘fair’.
Recommendation to business and individuals
Unless and until the ‘fair use’ exemption is introduced and its application to internet use is better understood, carefully consider copyright laws before distributing protected content.
Particularly for businesses, if you are planning large scale distributions of copyright protected material through your social media pages, you should obtain consent from the copyright owner.
And, if you intend to create memes and alter copyright material, make sure amendments are significant enough that the transformation can be considered as new works.
One can only hope that this copyright law review and introduction of the ‘fair use’ model will see Australia looking forward and being as technology-friendly as possible. If not, there is the risk that we will need to go through this again when new technologies are developed. We will just have to wait and see.
Leonie Chapman is Director of LAWYAL Solicitors which provides expert legal advice that is quicker, easier to understand and cheaper than traditional law firms. Leonie's previous experience as an in-house lawyer for Bluestone Group Pty Ltd and Macquarie Bank Limited has ensured her legal advice is delivered with a highest degree of quality and commerciality.