In an ever-changing world of continually evolving technologies, it is becoming increasingly more imperative for digital content creator’s and media outlets to govern how they interact with works protected by copyright. We now live in a time that is referred to as the “digital society”, meaning that the progressive world people are growing up in, their behaviours need to constantly be adapted accordingly.

This has raised many questions for copyright regulation and challenged the credibility within digital media. In particular, significant cases which have sparked debates over recent years within this area of law can be acknowledged as ‘The Panel Cases’ (2002, 2004 and 2005) and the iiNet case (2012). By thoroughly examining the precedent these respective cases established, this Explainer shows the prominence copyright law places within the media in Australia. Providing insight for modern day Broadcast networks and content producers in understanding the laws surrounding copyright infringements and the strict statutory and behavioural borderlines their country of origin imposes.

In Australia, copyright law is governed by the Copyright Act 1968, and is administered by the Department of Communications and the Arts. It states that…

Copyright law provides creators with an incentive to create new works and a legal framework for the control of their creations”

(Copyright Act 1968)

However, throughout the course of time technology has changed the way in which people utilise copyright works. Therefore, copyright regulation must adapt accordingly to allow the public to be creative in their uses whilst still providing copyright owners with the adequate protection.

There are some situations where the law allows people to use copyright material without permission for their own personal use these, however, are narrow and specific. For example, Fair dealing for the purpose of parody or satire, is acceptable in certain instances, though it is important for online creators to note the provision of the Copyright Act 1968 and dealing with ‘copyright in subject matter to other works’. Dealing with copyright material means using the material in any of the ways reserved to the copyright owner. Nevertheless, despite whether the use of copyright material is “fair” depends on the circumstance’s, hence where the concept of “fair dealing” comes into consideration.  

This new format of copyright law was regulated in the wake of the High Court’s decision of the Panel Case (2004) whereby the federal government enacted an additional fair dealing exception, for the purpose of ‘parody or satire’. A parody is using a copyright work in a humorous way. Some content creators produce parodies to make fun of or criticise the original work. Satire, is the use of humour, irony, exaggeration or ridicule to expose and criticise an individual or society. ‘The Panel Cases’ (2002, 2004 and 2005) set a precedent of how parody/satire cases would be dealt with within Australia for years to come. 

The Panel, was a weekly program broadcasted on the Australian commercial television network, ‘Ten’. It involved a panel of special guests and comedians commenting on recent events occurring at that particular time in a humorous way. The agenda of the show was to mostly highlight footage from news events and other television station programs, which formed the basis of critique, satire or parodies. However, competing broadcasting networks such as Channel Nine, issued claims stating that Channel Ten had breached its copyright by using excerpts from several of its programs on the show. 

On appeal from the trial judge, the Full Court of the Federal Court extensively concurred with Channel Nines disputes and stated that Ten had significantly breached its copyright. The nature of the appeal further concluded that:

Therefore, in contemplating all this information, what do modern broadcast journalists and online editors need to be aware of? And how does this regulate the media?

In its simplest sense, the question of ‘substantiality’ applies across all sources of media. What professional communicators and content creators can take from this case is that any use of substantial portions of someone else’s work can be a breach of copyright. Thus, regulating the media, in what can and can’t be uploaded, regardless whether or not the proportion taken compared to the total work might be small. Since the Panel cases, a new fair dealing defence covering parody or satire has been introduced and can be found under sections, 103AA of the Copyright Act.

Broadcast journalists, online editor’s and creators, need to take heed to the finer aspects apparent in the Panel cases decision particularly on substantiality. They should look carefully at the Full Federal Courts 2002 and 2005 decisions, for example of excerpts complying with, and breaching, the requirements and familiarise themselves with these concepts when creating and publishing content themselves.

With the rapid progression and evolution of the online world, it is becoming easier for online content creators to take small samples of someone’s work and use it in their own. However, Copyright regulation online compared to the regulation of the press slightly differs.

Almost everything you might include in a blog or website is likely to be covered by copyright Law. This can include words you compose, photographs, music you share, plans you draft and annotated lists you compile. Most treaties and laws do not explicitly mention multimedia product’s, though a range of new contemplations have arisen with the rapid progression of the internet.

Digital content creator’s and professional communicators should resist the temptation to cut and paste the words, images and sounds generated by other authors, as these will most likely be infringing the rights of the copyright owner. There is some debate over this, with people perceiving that if material is posted on the internet, it gives them an ‘implied license’ for others to use it.

The Australian Copyright Council offers advice for this stating:

You will have an ‘express’ permission if, for example, there is a statement on the site which states that you may do certain things” (For example, download a document for personal or non-commercial users).

Australian Copyright Council

This indicates that the site has to be very clear about permission to use its content (For example it could have a button that says ‘printer friendly version’ or ‘email to a friend’.

Moral rights amendments to the Copyright Act were partly a response to the propensity of the web and social media users to cut and paste and utilise the work of others. The Copyright Amendment (Digital agenda) Act 2000 introduced changes to copyright law to address those problems and as a result a series of High Court and Federal Court copyright cases have been dealt with. Case Law in this area is developing rapidly, and there have also been legislative interventions.

A prime example can be identified as the iiNet case (2012). Users of iiNet (an ISP) infringed copyright in films by making them available using BitTorrent peer-to-peer system. Thirty-Four Australian and United States companies claimed iiNet infringed copyright in thousands of commercially released films and television programs, by allowing its users’ infringing acts. Although iiNet had taken no specific action in response to these allegations surrounding copyright infringement’s, the High Court held that it did not authorise the breaches. Reasons being, it did not have any direct power to prevent the infringement’s from occurring, and to say it did would place obligations on ISP’s that the Copyright Act does not impose.

Through receiving this case and the fundamental’s apparent in the ‘Panel Cases’, this Explainer seeks to provide modern day digital creators and broadcaster’s a foundation of how they interact with works protected by copyright. Although, copyright is not just important to creators and copyright holders, the topic also has an important impact on society as whole. Copyright needs to balance the interests of all the stakeholders, including cultural society, the public interest and in particular the fundamental rights of people.

With the ever-changing world of technologies and rapid progressions of the digital age, copyright regulation will always be altering, individual’s need to familiarise themselves with current copyright laws and understand the key concepts in how these regulate the media. Ultimately, within this digital age, the creator themselves will have their own power on what they upload, it is important they take notice to the most current laws, to make sure their content doesn’t result in copyright infringement.    

References:

Ross, Jordan — “The Panel Case and the Desirability of Harm as a Requirement of Copyright Liability” [2002] DeakinLawRw 9; (2002) 7(1) Deakin Law Review 201. 2020. Ross, Jordan — “The Panel Case and the Desirability of Harm as a Requirement of Copyright Liability” [2002] DeakinLawRw 9; (2002) 7(1) Deakin Law Review 201. Available at: http://www.austlii.edu.au/au/journals/DeakinLRev/2002/9.html. [Accessed 27 April 2020].

Copyright Amendment (Digital Agenda) Act 2000 . 2020. Copyright Amendment (Digital Agenda) Act 2000 . Available at: https://www.legislation.gov.au/Details/C2004C01235. [Accessed 27 April 2020].

Mark Pearson/Mark Polden. (2019), Cp 11 ‘Intellectual property: Protecting your work and using the work of others’. The Journalists Guide To Media Law, A handbook for communicators in a digital world. p.g 412