ALJ724 2013 legal issues across communication 1: Copyright

Legal issues across communication

• Copyrightand related issues

• Contracts

A/Prof Martin HirstSeptember 2013

COPYRIGHT• COPYRIGHT BRIEF• 1. HAS THERE BEEN COPYING? A “substantial part” needs to have been copied, NOT the entire work.

• 2. WHO IS THE CREATOR OF THE “WORK”?

• 3. HAVE THE RIGHTS BEEN SOLD, ASSIGNED, LICENSED?

• 4. IS THERE A CONTRACT?• 5. IF NOT, WHAT DID THE PARTIES INTEND?

COPYRIGHT• Competing aims: • The right to get value from things you create - The right to access and use things that other people have created

• Copyright law developed worldwide – global trade and commerce has meant it had greater priority for governments than some other areas of the law

• Copyright will only exist for a set period of time – after this access unrestricted

COPYRIGHTOF STUFF

• Copyright only applies to tangible things

• So ideas, styles, techniques cannot be protected by copyright – as well as FACTS and INFORMATION

• Copyright protects “WORKS” – like writing, artistic works, music, computer programs, film/video, photos, broadcasts, performances

• “Moral rights” also now protected – right to be acknowledged as the creator of the work etc.

COPYRIGHT –DURATION

• Copyright expires at different stages for different ‘works’:

• 70 years after the death of the creator of a literary work or photographic work

• 70 years after sound recordings or films first published

• 50 years after first radio or TV broadcast

• 25 years after the first edition of a published work

COPYRIGHT• Important for media practitioners and creators of work in two ways

• They need to know what the rules and costs are for using material (word, photos, video etc) that has been created or is owned by others

• Particularly important in the online digital age of ‘user-generated’ ‘citizen’ content

• They also need to know what their own rights are if others use their work

COPYRIGHT

• Copyright treats works as a commodity – a valuable possession – as with all possessions these can be bought or sold, leant, given away

• Australian copyright law is contained in the Copyright Act 1968 + amendments .

• It is a Commonwealth law • It involves civil AND criminal law• The Australian Copyright Council http://www.copyright.org.au/

COPYRIGHT – WHEN COPYING IS OK

• 6. IS THERE A DEFENCE?• “Fair dealing”• S.41 defence covers reproducing original material for criticism or review

• S.42 covers reproducing material in order to report the news.

• In both cases, “sufficient acknowledgement” must be given to the owner of the work.

• And the amount copied must be “fair”

COPYRIGHT-RELATED ISSUES

• PASSING OFF• Applies to an individual or business misrepresenting itself as someone else’s business or personality or misrepresenting endorsement from someone else’s business or personality - and gaining custom, trade or goodwill as a result.

PASSING OFF

• Key elements:• they must have a reputation or personality that has some value

• a business or individual must be taking advantage of this without permission

• the passing off must cause some damage to the owner – either financial loss or damage to the image or reputation that is being exploited

INTELLECTUAL PROPERTY

• Register with ‘Intellectual Property Australia’:

• DESIGNS – to protect “the overall appearance of the product resulting from one or more visual features”

• TRADE MARKS – to protect “a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade”

• PATENTS – to protect inventions of products or processes

COPYRIGHT - CHECKLIST• 1. WHO IS THE OWNER OF THE “WORK”?• Who is the “creator”?• 2. HAVE THE RIGHTS BEEN SOLD, ASSIGNED, LICENSED?

• Is there a contract?• For freelance journalists – usually retain the ownership of copyright but allow use

• For employed journalists - where the work is done in the course of an employee’s usual duties, the employer owns copyright

COPYRIGHT - CHECKLIST• 1. WHO IS THE OWNER OF THE “WORK”?• Who is the “creator”?• 2. HAVE THE RIGHTS BEEN SOLD, ASSIGNED, LICENSED?

• Is there a contract?• For freelance journalists – usually retain the ownership of copyright but allow use

• For employed journalists - where the work is done in the course of an employee’s usual duties, the employer owns copyright

COPYRIGHT - PENALTIES

• In Civil cases:– • Damages – compensation for the unlicensed use of the material

• Injunctions – orders to stop more copying

• Account of profits – handing over the profits made by the illegal copying

• Orders for ‘delivery up’• In Criminal cases:- fines and imprisonment

COPYRIGHT – THE FUTURE

• In the digital internet age, copyright laws are facing significant challenges

• The basic rule is that linking is not copying

• BUT- consider Youtube and video sharing sites, Limewire and audio sharing sites

• The increasing use of ‘user-generated’ or ‘citizen’ content in news coverage – who owns it? Who can use and re-use it?

• The availability of photos and video on social networking sites like Facebook

COPYRIGHT – THE FUTURE

• New laws to protect digital rights, video games, artistic rights have been developed

• BUT – enforcement against individuals is rare and is difficult

• New websites and copying can occur quicker than the law can catch up

• Social network sites put the responsibility on the user to ensure copyright is their’s

CONTRACT LAW

• Contracts govern many parts of daily life

• Definition – “An agreement between two or more parties that deliver a service, benefit or goods in exchange for something”

• Best in writing because they are more certain, but can be verbal or by custom and practice

• Legal advice is recommended

CONTRACTS

• Three essential elements: Offer, Acceptance and Consideration

• Offer – one of the parties needs to make a clear offer to deliver or perform a service, benefit or goods

• Acceptance – the offer must be accepted on agreed terms. Partial acceptance or conditional acceptance varying the terms of the original offer will not constitute acceptance

CONSIDERING A CONTRACT?

• Consideration – there must be something of value or benefit given in return for the offer of services or goods. This is often money, but can be other things such as payment in kind.

• Intention can also be important – both parties need to be clear they are entering into a binding agreement

CONTRACT ON YOU

• Once a contract is recognised by the courts as existing, it is legally enforceable

• Failure by either party to deliver their side of the bargain can lead to legally enforceable consequences

• Either to enforce the terms of the agreement or to provide compensation or damages for “breach’ of the terms of the agreement.