What does Copyright or Copyrighted mean?
There are many types of Copyrighted ‘works’ as they are called in legislation. Generally speaking, if you have created something new and distinctive such as music, a photo or image, a writing, book or article, an invention, etc. you have automatic rights to this 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.
When is Copyright Infringed?
When someone uses your material in a way restricted by your Copyright protection without your permission. It may only be part of your work (if it is a ‘substantial’ part of your work) such as an important comment or theme and does not have to be long or the majority of your work to be ‘substantial’ as per the legislation.
It is also infringed if someone provides the ‘means’ or facilitates your breach of Copyright, for example, a site that allows others to use or post your unauthorized works. Or if they sell or permit the sale of your Copyrighted material, they are 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.
What is a Copyright Infringement Notice?
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.
What is not protected by Copyright?
Ideas, information, concepts, names, peoples’ personas cannot be Copyrighted. So if you write down your ideas, these are protected by Copyright as they are written. However, if you have only told someone, this is an ‘idea’ rather than a written work able to be protected.
You also cannot protect an original name you have come up with for yourself or your child, for example.
Do I need to register my material in order for it to be Copyright protected?
No, Copyright protection is automatic 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 notice 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.
What does a person need to do to use my Copyrighted material ‘legally’?
Essentially they require your permission. You can either give individual permission to people for a particular specified purpose, you can give everyone permission to republish or use your material or you can grant a licence to someone for a fee to use your works or material.
What can I do if my Copyright has been Infringed overseas?
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.
I paid a developer for my website but he’s using it for other clients. Is he breaching my Copyright?
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.
What happens if I receive a Copyright Infringement Notice from my ISP?
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.