How to Avoid Copyright Infringement

Last updated: 23 September 2021

Here’s our most popular Infographic. Shared on social sites and re-posted on the Internet over 1,500 times! Not bad for a little legal website in Australia 🙂

Internet Copyright Infringement is not well understood and there are lots of myths and misunderstandings circulating online. So to help website owners, graphic designers, website developers, bloggers, etc. we designed this simple Infographic to explain how to avoid breaching Copyright and how to protect yourself using a Copyright Infringement Notice.

internet copyright infringement
5 Copyright Infringement Myths [Infographic]

Use this Infographic on your website

You are welcome to share this Infographic as long as you only use it for personal (not commercial i.e. money making) purposes and you give attribution to Legal123. Download a PDF version of this Infographic here or copy and paste the code above into the html of your website.

Explainer Video

Plus we’ve recorded a video explaining online Copyright Infringement which you can watch above. The article below explains Copyright Infringement in more detail with answers to some of the most frequently asked questions – from both a creator and user perspective.

Legal issues covered in this guide

Click on any of the questions below to jump to that section of this legal guide.

If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.

Definitions

If you have created something new and distinctive – such as music, a photo or image, some writing, book or article, an invention, etc. – you own the Copyright for that ‘work’. You have automatic rights to this Copyright protection without the need to register them. In other words, Copyright protection is free and applies automatically when works or material are created without any need for registration or markings.

Ideas, information, concepts, names and peoples’ personas cannot be Copyrighted. So if you write down your ideas, these are protected by Copyright as they are written. But if you have only told someone, this is just an ‘idea’ and not a written work that can be protected by Copyright. You also cannot protect an original name you have come up with, for example, for yourself or your child.

When someone uses your work or material without your permission then they have “infringed” your Copyright. Even if they only use part of your work they may be infringing your Copyright. For example, using an important comment or theme of your work, even though it is not long or the majority of your work, may be ‘substantial’ (as per the legislation) and constitute Copyright infringement.

Copyright is also infringed if someone provides the ‘means’ or facilitates the breach of your Copyright. For example, a site that allows others to use or post your work without your permission is breaching your Copyright. Or if they sell or permit the sale of your Copyrighted material, they are also breaching your Copyright and can be liable for the proceeds as well as damages.

Even if they do not make any money from using or reproducing your Copyright, they have breached your Copyright just by using it as material for or on their website.

The purpose of a Copyright Infringement Notice is to make the person aware you have Copyright ownership of the work and to notify them that they are infringing your rights. You need to tell them what they are using material you own and how to remedy the situation as well as providing a timeframe for them to comply. In addition, notify them that if they do not comply, you have the right to commence formal legal proceedings against them.

copyright infringement complaints lodged with google
Copyright infringement complaints lodged with Google (November 2020)

The Copyright infringement problem is huge! Google receives more than 1 million Copyright takedown notices per day. As of November 2020 Google has received over 4.8 billion takedown requests. You can check out Google real-time stats here.

I’m a Creator

No, Copyright protection is automatic, immediate and you do not need to apply for it or register works in Australia. There is also no requirement to publish your work or even put a Copyright sign or notification on it, for it to be protected by Copyright.

How do I prove I am the owner if there is no registration system?

You need to be able to show as many things as possible about how you created the work. If you wrote an article or book, you may have drafts or be able to show evidence of files and times you saved them on your computer. If you own a photograph, you may have several similar versions or the version before it was Photoshopped, for example. You may even have or need witnesses to show or state that they saw early copies of your work.

How do I protect my digital photographs, images or designs

If you’re a photographer, artist or graphic designer, here is what you need to do to legally protect your images and photographs online:

  1. Include a Copyright notice on your work and website – putting a symbol and notice on your work and website will alert website visitors that this is your work and may act as a deterrent for people trying to copy it.
  2. Put watermarks on your digital images – include your name or website name on the actual image. This notifies people that this is your image, makes it more difficult to copy, reminds them they are not permitted to reuse, copy or modify it and acts as stronger evidence that someone was attempting to steal your work if they remove it.
  3. Have clear Licensing Terms on your website – one of the most important items for your business. Licensing Terms set out how purchasers may use your images and what rights you retain. Without these a purchaser could assume they have purchased all your full Copyright ownership.
  4. Make sure the subjects of your photographs sign Release Forms – if you hire a model, use colleagues, clients or a friend’s child in a photo shoot, you should have them sign a Release Form, so you can show you have the right to use the images.

What does a person need to do to use my Copyrighted material ‘legally’?

Essentially they require your permission. You can either:

  • Give an individual permission for a specified purpose
  • Give everyone permission to republish or use your material, or
  • Grant an individual licence for a fee to use your works or material.

What should I do if someone steals my work?

Send them a Copyright Infringement Notice, asking them to either take down the work or give you a link or attribution. Alternatively, you can offer them a licence to use the work for a fee. And if they have profited from your work (i.e. they’re selling your photos, designs, etc.) you can claim royalties from them.

You would normally need to get advice from a lawyer with expertise in the law of the relevant area or jurisdiction. But you can first try to have the matter settled yourself informally.

You can try notifying the website by sending a Copyright Infringement Notice. In most instances this will be sufficient and will work. Most websites do not realize that they are infringing your Copyright, as it is often a case of a member posting your material that they are not aware of, and will remove any offending material once they realise this.

If the website owner refuses to acknowledge or do anything about the Infringement, you can advise the hosting provider and normally they do not want to promote or be responsible for websites that are aiding or committing illegal activity. They will normally either send a Notice to the offending website and give them a notice period to comply or take similar action. Either way, you may find that your demands are met.

It depends on what your agreement with your developer says. Many developers try to maintain the ownership of the code and software programs they develop. You need to ensure that your agreement with your developer makes it clear that you will obtain full ownership of your site, code and idea upon payment.

In any case, you need to ask your developer for a copy of the code for your site in the event you need to re-create it if you lose it (due to a hosting problem or other issue) or in the event you want to have another developer add to or fix it. Either way, if you ever want to sell or have a grant, financing or register any intellectual property rights in your website business, you will need to be able to show you own the site, the code and all related concepts.

Ensure you do this with your developer in your agreement before your site is developed. If you obtain ownership of your site and code through your agreement and the developer uses your concept, code or idea, he will be breaching your Copyright.

An infographic is a special case. It’s normally a collaborative work, where a client will collect the facts and write the takeaway summary points and a graphic designer will layout the design and create the graphic images.

By default, the graphic designer owns the rights and the infographic Copyright.

Then the client should license the image from the graphic designer, as either an exclusive or non-exclusive design. In the licensing agreement, the client should state clearly that they have the right to reproduce the infographic image, without giving the graphic designer credit, if that is what they want.

I’m a User

Can I use images off the Internet without permission?

It is a common misconception that if something has been posted on the Internet, it is in the public domain and may be copied, reposted, extracted from, commented on and used freely. This is Myth #1 in the infographic above and is in fact wrong:

You cannot use or post anyone else’s photographs, images, words, songs, taglines, music, articles etc. without their express permission.

If you copy material off the Internet without permission, you are very likely infringing the rights of the Copyright owner.

Some people think if a picture or article does not have a Copyright symbol or notice, it is not protected and can be freely used. This is Myth #4 in the infographic above and is in fact wrong:

You cannot use or post anyone else’s photographs, images, words, songs, taglines, music, articles etc. without their express permission.

There is no requirement to display a Copyright symbol or even to register any ‘work’ to have Copyright protection. It’s protected from the moment it is created and the owner does not lose this protection just because they haven’t displayed the Copyright symbol.

Again, this is a common misconception. Even if you credit them, this is not, in many cases, enough or acceptable – you need to check with the owner of the ‘work’ first. This is Myth #2 in the infographic above:

You cannot use or post anyone else’s photographs, images, words, songs, taglines, music, articles etc. without their express permission.

There is no implied permission, so you cannot assume they are OK with it. Now some websites DO state that you can use certain material, provided you link back to them and give them credit. But you should check first.

Can I use someone’s work as long as I don’t profit from it?

No, you cannot use another person’s ‘work’ as long as you don’t make any financial gain or profit from it. You are breaching Copyright whether you make money or not! This is Myth #5 in the infographic above:

You cannot use or post anyone else’s photographs, images, words, songs, taglines, music, articles etc. without their express permission.

And you cannot use the argument that you are giving the Copyright owner free advertising or that you came up with the ‘lucrative’ idea and you will share it with the Copyright owner – any and all profits you make would be taken into account by a court if you were sued.

It depends. All use of a ‘work’, whether in part or in a derivative form, is still covered by Copyright law and protections. There are, however, a few exceptions that are called “fair use” or “fair dealing” (Copyright Act 1968 section 41). These permit, for example, comments and short quotations used for:

  • Research or education
  • Review or criticism
  • Parody or satire

In addition, you must attribute the author, artist or photographer with the full title of their work being posted. And you may not profit from any re-use.

How can I legally use Copyrighted images and music?

You can only use Copyrighted images and music after you have gained permission. In general, there are 4 ways of getting permission:

  1. Search the Internet for images or music in the “public domain”. The Copyright for these works has expired and you can use them without permission or attribution.
  2. Search the Internet for images or music with Creative Commons (CC) licensing. These works have been made available by their creators for sharing as long as the creators are given attribution.
  3. Search the Internet for libraries of images and music that can be licensed. These are where creators have listed their works and pre-negotiated a license deal. All you have to do is agree the terms and pay the licensing fee.
  4. Contact creators directly. If you have a particular work in mind (or are commissioning a work) then negotiate a deal directly with the creator. But make sure to document the agreement in writing.

If an ISP (Internet Service Provider) passes on a Copyright Infringement Notice from a user, they are telling you that a Copyright owner believes that you have Infringed their Copyright in some way. This is your ISP simply passing on a message to protect themselves and to notify you to protect yourself and to remove any offending material.

Normally, if you do so immediately, there are no legal consequences. If however, you do not or if your website, for example, has been promoting things such a defamatory blogs or the resale of Copyrighted material, you can be held personally liable for penalties and proceeds of such material.

As a website owner, you are held responsible for the posts, blogs and material you host on your website as you are seen to be promoting and aiding such material and actions. Therefore, you must either have strict rules around others posting material on your site and/or you need to ensure you have a robust mechanism to check all material that others may post. Otherwise you may find you are in court paying licensing or royalty fees for your users selling unauthorized material as you permitted and enabled them to do through your website.

In addition, if you do nothing and your ISP continues to get complaints about your site infringing other people’s Copyright, they may choose to close your site down and terminate your account. This normally only happens after several warnings.

If you use someone’s Copyrighted work and profit from it then you may have to pay the creator damages. For more serious cases (e.g. counterfeiting goods or pirating software) fines of up to $117,000 for individuals and $585,000 for corporations can be levied – and up to five years in jail.

We hope you found this article on How to Avoid Copyright Infringement in Australia helpful.

About Vanessa Emilio

Vanessa Emilio (BA Hons, LLB, ACIS, AGIA) is the Founder and CEO of Legal123.com.au and Practice Director of Legal123 Pty Ltd. Vanessa is a qualified Australian lawyer with more than 20 years experience in corporate, banking and trust law. Follow this link to read the full bio of Vanessa Emilio.