From 3 - 14 November 2003, Deborah Browitt and Sandra Coburn from high profile law firm Minter Ellison were online to provide general information on legal questions relating to flexible learning delivery. Cathy McNickle was the moderator for the event.
When preparing resources for this Community "best of" site, we have almost always summarised the main points raised during the discussions that were held. However, in this case, we feel that the Q&A format of this event should be preserved.
Here is the edited transcript of what took place. Names of people submitting questions (as well as most of the "Hello/Thank You/Kind Regards" type greetings) have been removed for the sake of brevity and readability.
Welcome - Deborah Browitt - Mon, 3 Nov 2003, 10:54
Good morning everyone
Welcome to the first day of the 'Ask a lawyer' session.
My name is Deborah Browitt and I am a lawyer from Minter Ellison.
I am looking forward to assisting you with any legal queries that you have arising from your role in the VET community. Issues such as copyright, intellectual property and privacy can impact greatly on your work and I am happy to answer any questions that you have.
Copying from the internet and acknowledging source 3 Nov 2003, 14:17
What must we know about quoting from the internet? Can we only quote the url for the home page? What legal restrictions are there on using internet materials for learning?
Re: Copying from the internet and acknowledging source - Deborah Browitt - Tue, 4 Nov 2003, 09:34
Hi everyone
I apologise for the delay in responding but I have been having technical difficulties yesterday afternoon and this morning accessing the site again. They seem to be resolved for the moment at least. I appreciate everyone's patience.
When quoting material from the internet, you should quote the name of the author of the material and the title of the material. As part of the moral rights of authors under the Copyright Act 1968, authors have a right to be attributed as the author of a work when certain acts such as reproduction, publication and transmission of the work are conducted. As a result, educational institutions are generally legally obligated to identify the author of a work when using the work. If relying on a statutory or other educational licence you should also check whether or not there are any particular marking or notice requirements requiring you to specify further information.
General information about copying internet materials for learning is available in the MCEETYA 'Guidelines for permissible copying from the internet under statutory licence' which have been agreed between the Copyright Advisory Group of the MCEETYA Schools Resources Taskforce and Copyright Agency Limited and developed with the assistance of Minter Ellison. The guidelines are available on the web via many links including at http://education.qld.gov.au/corporate/doem/forms/11-04-perm-copy.doc
Re: Copying from the internet and acknowledging source - Tue, 4 Nov 2003, 16:09
One of the issues we grapple with here at work is that we believe the copyright issues for electronic media are different than print media in an educational setting.
SO for instance we have been told that any staff member can copy and distribute specific pages from a text and distribute to students (and that other staff could use the same text, copy and distribute other pages but that we cannot necessarily do the same with an electronic article in a journal (there are much stricter and more complicated rules).
To combat this we are only posting (distributing the URL where the article can be found) - sometimes needing to give prompts about the links to follow as there seems to be some concerns about posting (distributing) links deep inside a web page.
Is this an accurate understanding?
PS: there is a fantastic resource at Purdue University about how to reference web sites, electronic information, emails, electronic articles etc. The front page of the web site is at http://owl.english.purdue.edu/ and follow the links ......
Re: Copying from the internet and acknowledging source - Deborah Browitt - Thu, 6 Nov 2003, 08:10
Sorry for the delay in responding. Technical difficulties make it difficult to access this site at times!
As you are aware, the hardcopy statutory licence allows educational institutions to reproduce works in hardcopy form for educational purposes. Copying under the licence may only be done within certain limits. The electronic reproduction and communication statutory licence scheme, which applies to copying works that originate in electronic form, permits copying from works in electronic form within certain copying limits. You can copy and communicate:
a) one article from a periodical publication, and more than one if the articles relate to the same subject matter;
b) 10 per cent of the words in, or one chapter of, a separately published literary or dramatic work, or 10 percent of a musical work.
As long as you are within the copying limits described above teachers can make multiple copies for their students for a particular course of study. I note also that if you have copied the maximum amount from a book or journal for students you cannot get another teacher at your school to assist by copying additional material and supplying it to your students.
In relation to the URLs for students, if the teacher directs that certain works must be used by students for research or study, then the reproduction of that work by a student for their study should be made under the licence and remuneration paid to CAL. If the use of the work is merely suggested then reproduction of that work by a student for their study and within the electronic copying limits, can be considered to be a fair dealing.
The document titled 'Guidelines for schools, TAFEs and independent educational institutions' which is produced by the Copyright Agency Limited and available from their website at http://www.copyright.com.au provides a useful summary of copying under the statutory licences.
Re: Copying from the internet and acknowledging source - Wed, 5 Nov 2003, 11:22
To add to the snowball there is the issue of plagiarism in assessment tasks - with greater access to information and more sophisticated tools there is a greater commission, and detection, of plagiarism.
The teaching of academic citation principles is OK up to a point but it is 'busy work' to cite accurately and bibliographic databases are perhaps a too bigger ask - at the current stage of their development.
Besides, the models of behaviour on the Internet seem to show shameless plagiarism.
I am inclined to think that legalistic determinations are not the answer - nor are 'fair dealing'/ethical concepts - in practical terms. There should definitely be plenty of informed debate.
IP in this information medium - Mon, 3 Nov 2003, 15:58
Intellectual property is obviously a major concern for all organisations. Possibly even more so in this information rich environment.
Many organisations are produceing information and making it easily available via downloadable documents and web pages.
What IP control can a company exert over a web page they have created?
Re: IP in this information medium - Deborah Browitt - Tue, 4 Nov 2003, 09:35
We have assumed for the purposes of our response that you are asking your question from the perspective of a web page user rather than a web page owner. If this is incorrect, please let us know.
The content of a web page, which can include text and images, will be protected by copyright if it contains material that is within the scope of material protected by the Copyright Act 1968. Protected material includes original literary, dramatic, musical and artistic works. In Australia, copyright protection is automatic and therefore works contained on a web page do not need a copyright notice to be protected. If the web page only allows you to access the copyright material by agreeing to accept certain terms and conditions then you need to comply with those terms and conditions.
As we referred to in our response to the first question, the MCEETYA guidelines on permissible copying from the internet are a useful reference when copying internet material under a statutory licence.
A web page may contain logos which are protected as a trade mark and therefore you need permission in order to use the logo.
New Copyright legislation - Mon, 3 Nov 2003, 16:11
Is there new Copyright legislation regarding the protection of Indigenous Cultural Property? If this is correct, what do practitioners/teachers who are teaching Design or other similar areas, need to be particularly mindful of in order not to infringe?
Re: New Copyright legislation - Deborah Browitt - Tue, 4 Nov 2003, 09:38
The questions so far have been diverse and interesting so it certainly looks like the session will be enjoyable.
In relation to new Indigenous copyright legislation, the Government announced in May 2003 an intention to introduce into Parliament the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 to give Indigenous communities legal standing to safeguard the integrity of creative works embodying traditional community knowledge and wisdom. The Bill proposes to amend the Copyright Act 1968 to allow Indigenous communities to take legal action to protect against inappropriate, derogatory or culturally insensitive use of copyright material in regard to which an agreement exists between the creator and the community.
To date there has been no specific Australian legislation on the protection of Indigenous Cultural Property and the Copyright Act 1968 applies to Indigenous works in the same way as it applies to other works.
In the international arena, countries are moving towards an agreed position about the protection of Indigenous Cultural Property. At the recent World Intellectual Property Organisation Inter-governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore held in Geneva from 7 to 15 July 2003, there was strong agreement towards developing concrete outcomes over the next two years, although differences still exist among countries in how to achieve these outcomes.
Re: New Copyright legislation - Tue, 4 Nov 2003, 15:35
"Not indigenous, just old." I have an old childrens book (undated, no publisher) ... sort of "Young Gentleman's Jolly Good Adventures" book (circa 1950s). I'd like to use the cover graphic (with some minor alterations) as the cover for a free student publication which would also be available on line.
As there is no way for me to identify the copyright owner can I merely insert a "good faith notice" and use the cover without too much risk?
Re: New Copyright legislation - Deborah Browitt - Wed, 5 Nov 2003, 08:26
If you are copying the book cover as a teacher of an educational institution and for educational purposes, the statutory licence may apply. If not, you need to seek copyright permission before copying the book cover. Copying under the statutory licence attracts remuneration and therefore you need to be certain of the need to copy the cover for your publication.
Further issues that need to be addressed are whether there are artworks on the cover and is the cover an artwork in its own right or can you count it as one of the pages in the book? If an artistic work is on the cover, this will be separately remunerable under the statutory licence. The question of whether a book cover should be considered to be part of a book, or a work in its own right is unclear in the Copyright Act.
If the cover is properly considered to be one of the pages in a work, copying one page (the cover) will be considered to be an insubstantial part of that work and may be copied. However there are rules about the circumstances in which you can place insubstantial parts online and you should check with your organisation's copyright officer.
If the cover is considered to be a work in its own right, as long as the cover is not commercially available (ie, separately published and available within a reasonable time at an ordinary commercial price), it could be copied and placed online.
You should also take care that in placing material online, you comply with the Copyright Act requirements that material online be only made available to authorised persons (eg, by using a password system so the material can only be accessed by staff and students of the institution).
You have also raised the issue of the author's moral rights. In particular, the right of attribution. You will not infringe the author's right of attribution by not identifying the author if you can establish that it was reasonable in all the circumstances not to identify the author. Factors taken into account in determining what is reasonable include any difficulty or expense that would have been incurred to identify the author. You would need to be satisfied on the particular facts that it is reasonable for you to not attribute the author. We recommend that if the publisher is apparent from the book then you should make contact to try and verify the artist and copyright position.
I note also that you mention a minor alteration of the cover. In this respect, you need to mindful of the author's right of integrity, which is the right not to have the work subject to derogatory treatment. If an alteration is material and prejudices the honour or reputation of the author, you may be breaching the author's moral rights.
Re: New Copyright legislation - Thu, 6 Nov 2003, 14:06
Thanks for the extensive response. Just for my own clarification: I believe the cover would be considered an art work on its own; I don't believe the small changes would be derogatory; there are no publishing details on the book- they are not contactable; and if we removed the cover from the open web accessible PDF file we would also cover the access issue. YES/NO?
(I'm wondering how books like "What colour is your parachute" which is full of old lithographs deals with its wholesale use of old pictures.)
Re: New Copyright legislation - Deborah Browitt - Fri, 7 Nov 2003, 09:01
If there are no publishing details on the book, you might also find helpful an information sheet produced by the Copyright Agency Limited and titled “Getting permission to copy” which details the various possible avenues of identifying rights holders. The information sheets are available from their website at http://www.copyright.com.au.
In relation to the use of ‘old’ lithographs, it is possible that these lithographs are no longer subject to copyright protection because they are in the public domain. For lithographs, which are an artistic work under the Copyright Act, the copyright term is as follows:
(a) if published during the artist's life: 50 years after the artist's death; or
(b) if published after the artist's death: 50 years from the end of the calendar year in which the engraving is first published.
Your own work at home - Tue, 4 Nov 2003, 09:38
As a full time teacher I do a lot of lesson preparation at home at night and on the weekends. These hours are unpaid and outsode normal hours of employment.
Do the teaching resources I create during these hours belong to me or my employer?
Re: Your own work at home - Deborah Browitt - Tue, 4 Nov 2003, 15:45
The general position is that unless there is an agreement to the contrary, employers own the intellectual property rights in resources created by employees in the course of their employment. In addition, for those employed by the Commonwealth or State government, subject to any specific agreement to the contrary, the Crown will own copyright where a work is created under the ‘direction and control’ of the Commonwealth or a State, or is first published by it.
Assuming there is no doubt that you are subject to a contract of employment, the essential issue is whether you have created the resources in the course of your employment. On a broad view, any materials created in accordance with your employment obligation to teach will be owned by your employer.
Legal authority on teachers' ownership of their work and any factors which mean that work has been created outside the scope of employment is scarce. Cases generally have shown that important factors in determining whether material is created in the course of employment include whether the resources have been prepared using your employer's facilities and in your own time. Determining factually whether or not you have created work in the course of your employment is a difficult and complex issue and requires a detailed analysis of the requirements of your employment.
The uncertainty in this area means that it is preferable to determine what is stated in your contract of employment and to determine the approach of your employer. Some educational institutions consider any course notes or materials to have been created in the course of your employment. If you are likely to be creating materials which you consider is outside the scope of your employment and you want to claim rights to it we recommend that you clarify your position with your employer.
Re: Your own work at home - Tue, 4 Nov 2003, 11:25
If I create multimedia learning resources in similar circumstances to Jeff, at home with my own software, who owns the learning objects. My view is that some of the objects are "inventions" and should belong to me but I have no idea how that would stand up??!!
Re: Your own work at home - Deborah Browitt - Tue, 4 Nov 2003, 15:48
My response to [the working from home] question is also relevant to your question.
Also, on the facts you have provided it is difficult to determine precisely the nature of any intellectual property rights in your multimedia learning resources but it seems likely that your resources would involve copyright rather than a patentable invention. Patents are rights granted for any device, substance, method or process that is new, inventive and useful. Applications must be filed with the Patent Office of IP Australia, which will assess if it meets the legislative requirements. Copyright protection is automatic and does not require any formal registration or other process.
Re: Your own work at home - Wed, 5 Nov 2003, 19:38
Many people have been "short changed" by their educational employers claiming rights to the work one does at home.
While working for TAFE NSW, I wanted to do some additional teaching work for another organisation. My wily old head teacher of the day advised me to apply to the Department for "Right of Private Practice". I duly applied and had a letter granting me this right.
What is the current stance of the various Education Departments in relation to this matter?
Re: Your own work at home - Deborah Browitt - Mon, 10 Nov 2003, 12:09
It is not clear what the terms of your letter involved or the circumstances in which it applied. We have not been able to determine the various positions of the Education departments but in any case it is preferable to consult the legal adviser at the particular State and Territory Department of Education who can advise the position of that Department in relation to ownership of intellectual property created by teachers and can discuss whether or not there is scope for an agreement contrary to the general legal position outlined in one of my earlier responses.
An example of how ownership of intellectual property is treated is provided by the Queensland’s Department of Education’s Guidelines to Conduct Research which state “… the State of Queensland owns any intellectual property resulting from research undertaken by the Department’s employees in the course of their employment. Contractors and consultants engaged by the Department must abide with the standard contract material clause related to Intellectual Property used in Education Queensland Standard Consultancy Agreement. This contract requires all intellectual property on its creation to be transferred to Education Queensland”.
Digital Rights Management - Mon, 3 Nov 2003, 16:17
For anyone who is not very familiar with Digital Rights Management, what are the basic elements that we need to be made aware of and any particular pitfalls that we also need to need to be aware of to protect ourselves etc?
Re: Digital Rights Management - Deborah Browitt - Tue, 4 Nov 2003, 11:52
A Digital Rights Management (DRM) system is any system that digitally manages intellectual property rights and protects copyright owners against infringements of their work. A DRM system allows owners of works to control access to and use of their works. There are numerous DRM systems and applications and they need to be tailored to the type of solution seeking to be achieved. There are three basic elements of protection as part of DRM consisting of (i) copyright protection, (ii) contract; and (iii) technology.
The first element refers to the fact that all owners of copyright material have exclusive rights over their works as provided by the Copyright Act 1968.
The second element of contractual protection refers to the fact that DRM allows owners to control access to and use of copyright material by contractual means. On the internet, this is done via a 'click wrap' contract.
The third element refers to the technological means of protecting copyright material consisting of technological protection measures and electronic rights management information (RMI). A technological protection measure is a device or product, or a component incorporated into the process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or subject matter by access or copy control. An example of a technological protection measure is encryption software. RMI is information embedded in or attached to copyright material that identifies material, the author or owner of material and the terms of use. An example of RMI is digital watermarks. The Copyright Act provides sanctions to prevent the circumvention of technological protection measures and support the attachment of RMI.
The particular pitfalls to be considered depends on whether or not you are interested in the pitfalls from the perspective of the user of material protected with DRM or the owner of material protected by DRM. As educators you may have an online learning and information environment which you are keen to manage with a DRM system. If you are using contractual means to manage access to information then you should adhere to the following principles which are aimed at ensuring a contract's enforceability:
(a) the user has the opportunity to review terms before accessing content;
(b) the user actively indicates consent to be bound by the terms (eg by clicking on an "I agree" box);
(c) the terms comply with standard contractual principles; and
(d) the contract is not on a separate page where the user must use a hyperlink to access the terms.
Further detail on the general issues to be considered by people setting up DRM systems is available in the resource titled 'A Guide to Digital Rights Management' produced by the Department of Communications Information Technology and the Arts and written by the Australian Interactive Multimedia Industry Association with the support of IPR Systems P/L, SecureNet, Gilbert and Tobin and Donna Parkes. The Guide is available at http://www.dcita.gov.au/drm/.
As a user, you need to ensure that when accessing information by agreeing to terms and conditions, you do not use the information so as to breach those terms and conditions. If material is protected with rights management information, note that the Digital Agenda Act introduced sanctions against intentional removal of RMI, or dealing in material with the knowledge that RMI has been removed.
Defamation, slander, consumer related questions - Tue, 4 Nov 2003, 11:10
What can anyone do to protect themselves against attack and harassment online?
What is the situation with personal emails that might, or might not be forwarded on without the person's knowledge? Can a person be held liable for what was written ? What rights do I have about my emails and what responsibilities do I have over emails that others might send to me?
What security/disclaimers should be used- do any work? For example, does
"Important Note: This e-mail and any attachments may contain personal information or information that is otherwise confidential or the subject of copyright. Any use, disclosure or copying of any part of it is prohibited.
>XXXXXX does not warrant that this email or any attachments are free from viruses or defects. Please check any attachments for viruses and defects before opening them. If this e-mail is received in error please delete it and notify us by return e-mail."
have any legal standing?
Should one say anything about the opinions expressed may not be those of my employer?
Where does an ordinary person stand when asked about recommending people and services or when others have done so. Ie what can one say in writing (email) that will not end up with a person in court for example if one knows a person to unethical or unprofessional? Can someone post vague and general warnings that everyone who knows will read as referring to a person or organisation? What responsibility , if any, does a professional have to make concerns about the professional conduct of people and organisations public? What responsibility do I have if I am asked for a professional judgment?
Re: Defamation, slander, consumer related questions - Deborah Browitt - Wed, 5 Nov 2003, 08:24
The responses for all of the questions (apart from one which I am still responding to) are as follows:
Q: What is the situation with personal emails that might, or might not be forwarded on without the person's knowledge? Can a person be held liable for what was written ? What rights do I have about my emails and what responsibilities do I have over emails that others might send to me?
A: You and your employer may be liable for what you say in an email message. You should ensure that your emails never create legal risks through such actions as infringing a third party's copyright material, defaming a person, containing offensive material or constituting racial discrimination or sexual harassment. If you receive such email then you should delete it immediately. If you forward an email containing defamatory material, this may result in a defamation claim against the original writer of the material as well as yourself. The extent of distribution can affect the extent of any damages awarded. You should also be mindful that if the content of emails is relevant to litigation then any such emails may be subject to discovery in litigation proceedings.
Most material contained e-mails is protected by copyright. If you are an employee, then emails written by you as an employee are owned by your employer. The copyright in any emails which you receive are owned by the creator of the copyright material. The copyright material of third parties must not be distributed through email without specific authorisation to do so. Care should be taken in forwarding an email as you may be infringing copyright by exercising the copyright owner's exclusive right to communicate their work to the public.
Q: What security/disclaimers should be used- do any work? Eg does
"Important Note: This e-mail and any attachments may contain personal information or information that is otherwise confidential or the subject of copyright. Any use, disclosure or copying of any part of it is prohibited.XXXXXX does not warrant that this email or any attachments are free from viruses or defects. Please check any attachments for viruses and defects before opening them. If this e-mail is received in error please delete it and notify us by return e-mail." have any legal standing?
Should one say anything about the opinions expressed may not be those of my employer?
A: Disclaimers are a useful means of mitigating risk of liability, but cannot be used to successfully disclaim liability in all situations. Also, although a disclaimer may ultimately be found to disclaim liability, you may have to expend considerable sums in defending claims, some or all of which may not be recoverable. Disclaimers should therefore be viewed as part of an overall strategy of risk management.
To the extent that disclaimers can successfully disclaim liability, then the disclaimer that you have suggested is appropriate apart from a few amendments. We recommend including a statement that "Any representations or opinions expressed in this email are those of the individual sender, and not necessarily those of [insert employer name]". You may also want to make the statement about responsibility for viruses more clear by stating "it is your responsibility to check any attachments for viruses and defects before opening or sending them on".
Q: Where does an ordinary person stand when asked about the recommending people and services or when others have done so. ie what can one say in writing (email) that will not end up with a person in court for example if one knows a person to unethical or unprofessional. Can someone post vague and general warnings that everyone who knows will read as referring to a person or organisation? What responsibility , if any, does a professional have to make concerns about the professional conduct of people and organisations public? What responsibility do I have if I am asked for a professional judgment?
A: There is a legal risk of defamation in emailing comments about a person to the effect that they are unethical or unprofessional. You are liable in defamation if it is proven that you have published material which defames another person in circumstances where no defence applies. Each time an email is sent or forwarded constitutes a publication for the purposes of defamation, regardless of the number of recipients.
The fact that a person is not named does not prevent even vague and general warnings from being defamation if the person can be identified in any case. Even a reference to someone as part of a group may be sufficient for a claim in defamation. The person alleging defamation must show that the words would be understood to refer to them in particular. If the group is reasonably large, it is less likely that this can be proven.
Different laws apply in each State and Territory but there are a number of defences available. It is difficult to determine if a defence would apply without having a detailed understanding of the facts in each case but if you are asked for a professional reference or you have concerns about the professional conduct of others then you may be able to rely on the defence that it is a fair comment relating to a matter of public interest. The communication must, on its face, be a comment (ie an opinion, criticism, deduction, judgment), the facts upon which the comment is based must be stated unless they are widely known and the communication has to be on a matter of public interest. If you are seeking to rely on a defamation defence then you should seek legal advice on its application to your particular circumstances.
There are other defences relevant to particular circumstances including the defence that a defamatory statement was made pursuant to a legal, moral or social duty, such as a report to the appropriate authorities of suspected child abuse.
Re: Defamation, slander, consumer related questions - Deborah Browitt - Thu, 6 Nov 2003, 10:50
The question relating to protection against attack and harassment online raises the issue of cybercrime.
Attack and harassment online is a form of cybercrime. Cybercrime involves illegal activities directed at or perpetrated through the use of computers, including transmitting offensive or illegal content using computers, stalking, harassment, unlawful access to or interference with the operation of computers, and committing fraud or other offences through the use of computers.
The opportunity for cybercrime to be committed can be counteracted through technical solutions involving access control and authentication technologies which are aimed at preventing unauthorised access to information systems. Virus detectors can identify and block malicious computer code and block and filter unwanted programs and content of emails.
Existing laws cover aspects of cybercrime activities. For instance, both the Commonwealth and the States and Territories have enacted laws in relation to computer trespass and the unauthorised access of data and it is an offence for a person to knowingly or recklessly use a carriage service supplied by a carrier to menace or harass another person, or in such a way as would be regarded by reasonable persons as being offensive. The lack of direct contact with a person sending offensive material or harassing you via the computer can make it difficult to locate, identify and arrest the offender who in many cases is not even in the same jurisdiction.
Publication and the Internet - Wed, 5 Nov 2003, 09:36
In the Gutnick v. Dow Jones case decided in December 2002, the High Court of Australia held that in defamation, "publication" on the Internet could be held to be wherever someone happened to read the defamatory material. That is, just because a site is written in the US, hosted in the US and maintained in the US doesn't mean that it's immune from Australian defamation law if that site defames an Australian.
My questions are:
a) have there been any Australian cases since that decision which have altered that principle?
b) does this broad-ranging concept of publication apply in areas of law other than defamation?
Re: Publication and the Internet - Sandra Coburn - Fri, 7 Nov 2003, 11:59
http://www.minterellison.com/ajpe/resources/file/eb02ea494ba1139/GutnickvDowJones.pdf
The Gutnick v Dow Jones decision certainly attracted a great deal of attention when it was handed down by the High Court late last year.
As you correctly point out, the court held that for the purposes of defamation law, ‘publication’ on the Internet occurs where the potentially defamatory material is downloaded and read, whether that be nationally or internationally.
In Australia, each ‘publication’ is considered a separate defamation and can form the basis for a separate cause of action. This potentially exposes online publishers to a considerable legal risk.
The Gutnick case represents the current legal position in Australia with respect to defamation on the Internet. There have been no subsequent cases, to date, which alter that decision.
If you, or anyone else, is interested in learning more about the Gutnick decision you may like to start by reading Minter Ellison’s ‘Legal Update’ on the case at the attached URL (click on the blue icon next to my name above).
In response to your second question (b), the notion of ‘publication’ arises in a number of different areas of law such as designs, copyright, and the regulation of gaming, just to name a few. The meaning of ‘publication’ varies depending on the particular area and circumstances you are dealing with. This makes it difficult to provide a useful general response to your question. However, if you have a more specific question regarding ‘publication’ I would be happy to answer it.
Competency and Recognition of Prior Learning - Wed, 5 Nov 2003, 11:22
A key part of flexible learning is to be able to have skills and knowledge already acquired recognised by education and training providers (Registered Training Organisations). In a competency-based training environment there is some concern about the currency of competency when accepting documentary evidence from other sources. The Australian Quality Training Framework (AQTF) places a strong obligation on RTOs to recognise formal and informal learning acquired in a variety of settings.
Can you comment on the legal liability for an RTO who issues a VET qualification where a significant proportion of the training and assessment is not carried out by the RTO who issues the qualification?
Re: Competency and Recognition of Prior Learning - Sandra Coburn - Mon, 10 Nov 2003, 10:18
Your question raises an issue for RTOs regarding the nature and standard of the training provided to students, and the VET qualifications issued by RTOs.
This is not an area in which we (the answering lawyers) practice but based on a quick look at the scheme I would make the following comments.
I understand that, at times, the transfer of 'credits' for previous training can be difficult to manage in a competency based, non-curriculum regulated educational environment.
As you point out, the Australian Quality Training Framework (AQTF) Standards for Registered Training Organisations requires RTOs to recognise prior learning, regardless of how, when or where that learning occurred. However, the AQTF Standards also require that before prior learning is recognised by an RTO, the assessor must be confident that "the candidate is currently competent against the endorsed industry or enterprise competency standards or outcomes specified in Australian Qualifications Training Framework accredited courses."
Failure of an RTO to comply with the AQTF Standards may have an adverse impact on their registration.
The matter of whether to issue a VET qualification where a significant proportion of the training and assessment is not carried out by your RTO, seems ultimately to be a policy issue for your organisation to determine, bearing in mind:
* compliance with the applicable AQTF Standards;and
* the importance of the quality of qualified students to your organisation's ongoing reputation as an educational institution.
More detailed information on these issues could perhaps be obtained from your institution's legal unit or from the professional body that represents teaching staff.
Distribution of digital media - Wed, 5 Nov 2003, 11:30
Advances in digital and internet technology have made a whole new range of resources available for download and distribution to students.
If material (eg a movie) is placed on a website for the purpose of allowing students to preview it before making a decision to buy an original copy, does this violate the copyright laws ? And if so, is the web site owner or the person downloading the material that has breached of the legislation ?
Re: Distribution of digital media - Deborah Browitt - Fri, 7 Nov 2003, 11:14
The Copyright Act gives the copyright owner the exclusive right to communicate that material to the public. 'Communicate' is defined to mean 'make available online or electronically transmit (whether over a path, or a combination of paths provided by a material substance or otherwise) a work or other subject-matter'. However, this right applies only to communications which are 'to the public'. Accordingly, for an infringement to occur, the uploading of copyright products to the web must involve those products being communicated to the public. Australian copyright law would interpret this to mean communication to 'the copyright owner's public'. In almost every instance, the uploading of copyright material to the Internet is likely to be considered to be 'to the public'. People, who have access to an intranet, unless it is purely private, may also form part of the copyright owner's public. It is also likely that the unauthorised act of uploading copyright material to a server would infringe the copyright owner's exclusive right to reproduce that material.
Therefore placing copyright material (eg a movie) on a website breaches copyright unless you have the permission of the copyright owner or are permitted to do so via a statutory licence or an exception in the Copyright Act.
Unfortunately the educational statutory licences that cover certain educational copying do not generally extend to films. Part VA of the Copyright Act has a statutory licence that allows educational institutions to copy and communicate broadcasts for educational purposes (eg, copying a TV show for use in class). However this does not extend to commercial videos, or other tapes of film material. The exceptions available for films are limited in scope (including films before 1 May 1969) and we would require further information to determine if they apply.
Note that films will generally contain literary, dramatic and musical works and often, pre-existing sound recordings, each of which may be separately protected. If your intended use of any other works or sound recordings in the film is not covered by an exception or statutory licence then you would also need to seek permission for their use from the copyright owner.
If the movie is posted on the web and a person then downloads the movie, the person downloading the material may also be breaching copyright if they are not licensed or come within an exception in the Copyright Act. Downloading would be an exercise of the exclusive right to copy the film.
clip art and photos copyright - Thu, 6 Nov 2003, 10:48
We would like to use Microsoft clip art and photos as well as photos found on general websites from the internet in a publication which we intend to sell. What are we allowed to use ? What copyright issues are there?
Re: clip art and photos copyright - Sandra Coburn - Fri, 7 Nov 2003, 12:31
Your question raises a number of issues worth considering.
Copyright is likely to protect the clip art and the images from websites as artistic works. Depending on the nature of the images, copyright may also subsist in any photographs themselves.
We start with the general position that reproducing copyright material without the permission of the copyright owner, will be an infringement of the copyright that exists in that material.
However, the Copyright Act contains a statutory licence that will generally allow educational institutions to reproduce an artwork that exists in electronic form, for the ‘educational purposes’ of the institution (ie as part of a course of study).
In this instance you would need to query whether sale of the publication containing copyright material is for ‘educational purposes’.
Educational institutions can sell copies of copyright material for educational purposes in certain circumstances, providing they are not sold in order to make a profit. However, such material can only be provided to people who are permitted to receive them under the statutory licence (such as staff and students of your institution).
For uses of copyright material that are not covered by the educational statutory licence, you would need to check the term of the licence that accompany the clip art or relevant website to see what (if any) uses of the material are permitted and/or seek specific permission to use the copyright material from the copyright owner(s).
We suggest that you seek specific advice from your legal unit or legal adviser regarding the application of copyright law to your particular situation.
Linking to 3rd Party Sites - Thu, 6 Nov 2003, 13:17
Have there been any changes from last year's discussion where it was stated "There is currently no Australian law regulating linking on the Internet and no strict legal requirement to obtain written permission form the owners of linked-to websites. However, obtaining such a written permission will help protect your organisation against any claim that links on your site infringe the rights of another website operator." ?
Could you outline what best practice could be in relation to linking to 3rd Party sites from online courses, for example, Should the link open in a new window? Should an alert message advise students they are now moving to a 3rd Party site? Should we link to the home page and provide advice on where to find the relevant page? Should the link take the student straight to the relevant page?
Re: Linking to 3rd Party Sites - Deborah Browitt - Fri, 7 Nov 2003, 11:16
In relation to the URL, the legal position in Australia continues to be unclear as there have been no Australian cases since last year clarifying the position. Our response also set out the following strategies which are still relevant to managing third party links:
(a) we suggest placing a statement on your links page(s) that by clicking on a link you will be directed to a third party's site, and you should respect the intellectual property rights on that site. This will also minimise the risk that users of your site could be mislead into thinking that your site was associated with or involved with the linked site; and
(b) add a statement to your links page(s) making clear that they are able to leave your website, that the site operator does not endorse a linked site, or guarantee the accuracy or currency of any information contained on a linked site.
Using a hyperlink which initiates a new browser window in which the other site is opened can be a means of emphasising that the other webpage is not a part of your website. This should only be additional to and not a replacement of the above statement to be placed around the link.
By following these steps you will minimise the risk if you decide not to undertake a process of seeking permission to link to third party sites.
Students copying music cds - Thu, 6 Nov 2003, 13:32
What are the implications for an RTO where a student may use CD-burners to make a copy of a music CD. Should this be explicitly included in our Computer Usage Agreement as an 'inappropriate/ illegal use' of facilities?
CD burners are provided as an alternative data storage option for students in libraries and some classrooms.
Re: Students copying music cds - Sandra Coburn - Fri, 7 Nov 2003, 17:19
As I am sure you are aware, the reproduction of a piece of music would usually be an infringement of the copyright in that material.
A RTO's potential liability for a student using a CD-burner supplied by the institution, to copy a music CD will depend on the particular circumstances.
The Copyright Act does create a "fair use" exception, which permits the use of copyright material for the purpose of research or study in certain circumstances. So, if a student's use of the CD burner fell within this fair use exception, there would be no copyright infringement and so no liability issue for the RTO. However, it is highly unlikely that reproduction of an entire CD could be considered "fair use".
Where a student infringes copyright, an RTO may be indirectly liable for 'authorising' that copyright infringement. For example, a copyright owner could argue that, by supplying the CD burners for student use, the RTO authorised the infringement.
Your RTO can help reduce its risk of liability by preparing, publicising and enforcing use policies that prohibit copyright infringement. This might include:
* as you have suggested, ensuring that any Computer Usage Agreement or another agreement, places an obligation on the students not to use the RTO's facilities in a manner which would constitute an infringement of copyright; and
* displaying a clear notice prohibiting copyright infringement near each CD burner.
Your institution's legal unit or an independent adviser will be able to advise you on the appropriate form and content of such a notice and contract.
You may also be interested to know that earlier this year, Sony Music Entertainment (Australia) Ltd succeeded in a discovery application against 3 universities for the alleged use of the universities' computer networks for reproduction and communication of MP3 files, infringing copyright in music and sound recordings. Sony successfully sought access to university records to identify alleged copyright infringers and to determine whether there are grounds to seek relief for copyright infringement. The implication of this decision is that an RTO could possibly be compelled to provide access to its records when a copyright infringement is alleged.
Adhering to access & equity principles - Thu, 6 Nov 2003, 16:24
I understand that W3C requires online training providers to observe access and equity principles when developing courses. Is this an ethical and/or legal requirement? If it is a legal requirement, what are the implications for providers who do not adhere to access and equity principles?
Re: Adhering to access & equity principles - Deborah Browitt - Fri, 7 Nov 2003, 11:19
You have raised an interesting issue.
The accessibility guidelines developed by the World Wide Web Consortium (W3C) to ensure that those with a visual impairment, or other disability, are able to access Web-based material, products, information, and services are advisory only and have no legal standing.
However, in Australia, the Disability Discrimination Act 1992 underpins a requirement for people developing websites to ensure that their websites are accessible to people with disabilities. The Australian Human Rights and Equal Opportunity Commission ("HREOC") has issued guidelines under section 67(1)(k) of the Disability Discrimination Act titled ‘World Wide Web Access: Disability Discrimination Act Advisory Notes’. The purpose of the guidelines is to assist people in developing web pages which comply with the requirements of the Disability Discrimination Act. The guidelines are available at http://www.hreoc.gov.au/disability_rights/standards/www_3/www_3.html#s2_1
The HREOC guidelines make clear that the provision of information and online services through the web is a service covered by the Disability Discrimination Act. The Disability Discrimination Act requires equal access for people with a disability where it can reasonably be provided. This requirement applies to any individual or organisation developing a web page in Australia, or placing or maintaining a web page on an Australian server. You will also notice the reference to the W3C guidelines as reputable in the area of accessibility.
Intellectual property protection for selling product overseas - Thu, 6 Nov 2003, 18:08
We have the possibility of selling educational multimedia to an overseas customer, but need advice on the protection of our intellectual property. We will be mainly selling licenced products, eg five-user licence, and need to ensure that overseas copyright laws will protect our ownership. Can you please advise us?
Re: Intellectual property protection for selling product overseas - Deborah Browitt - Mon, 10 Nov 2003, 12:11
The possible sale of educational multimedia sounds interesting.
It is most likely that the intellectual property in your educational multimedia is copyright. As a result of international treaties such as the Berne Convention, Australian artistic works are protected by copyright in most other countries. To get copyright protection in Australia, you do not have to have a copyright notice containing your name, the copyright symbol and the year, on your copyright material. Similarly, in countries that are signatories to the Berne Convention there is no requirement to have a copyright notice. However, in some countries, the copyright notice must appear on copies of published works for the work to be protected. Refer to www. wipo.int for a list of countries who are signatories to the Berne Convention, which is administered by the World Intellectual Property Organisation (WIPO).
You could ensure that the scope of any licence that you provide is restricted to those geographical areas where copyright protection is provided.
Copyright Amendment (Digital Agenda) Act - Fri, 7 Nov 2003, 11:21
Under the Digital Agenda Act, sanctions were established for making and distributing technologies which circumvented digital copyright protection systems. My question in this area is: If I'm a TAFE teacher, can I make some circumvention devices and teach classes on how copy control systems work using specific examples circumvented by the devices I made?
Re: Copyright Amendment (Digital Agenda) Act - Deborah Browitt - Mon, 10 Nov 2003, 12:13
The Copyright Act prohibits a person from manufacturing, dealing or providing circumvention devices and services where the person knew or ought to have known that the devices or services would be used to circumvent a technological protection measure.
Certain exceptions apply under section 116A of the Copyright Act, which enables circumvention devices to be made, imported or supplied on receipt of a declaration from the user of the circumvention device or service (with a penalty of 1 year imprisonment for providing a false declaration) for permitted purposes. The permitted purposes include the copying of literary, dramatic, musical and artistic works done under the educational statutory licence in the Copyright Act. In particular, the exception applies:
(a) to a person authorised in writing by a body administering an educational institution to make reproductions and communications under the statutory licence;
(b) for the purpose of making reproductions and communications under that statutory licence;
(c) to allow the copying and communication of material which is not readily available in a form which is not protected by a technological protection measure. A work is taken not to be readily available if it is not available in a form that lets a person do an act relating to it that is not an infringement of copyright in it as a result of the educational statutory licence.
You must fill out a declaration before accessing the device or service and there are penalties for making a false declaration.
TAFE institutes throughout Australia are licensed under the hardcopy statutory licence and TAFE institutes other than Tasmania, NT and some Victorian TAFEs are licensed under the electronic statutory licence. You should check with your administrators to ensure that you are licensed.
The effect of section 116A is that if you are licensed under the educational statutory licence, you will be able to make circumvention devices to use to teach classes on how copy control systems work but you can only use the devices to circumvent technological protection measures on materials which you could access in accordance with the copying limits of the statutory licence. That is, if but for the technological protection measure you are able to access and use the work under the statutory licence you are able to make and use a circumvention device to circumvent a technological protection measure to access that work.
Kind regards and good luck with such an interesting teaching idea.
Greetings - Sandra Coburn - Fri, 7 Nov 2003, 11:48
Good morning everyone
My name is Sandra Coburn and I work as a lawyer at Minter Ellison along with Deborah Browitt.
I will be helping Deborah to answer some of your legal questions in this ‘Ask a Lawyer’ forum.
The discussion so far has raised some interesting legal issues and I look forward to being involved in the remainder of the sessions.
Re: Greetings - Fri, 7 Nov 2003, 12:53
Welcome Sandra, there has been a pretty amazing array of question asked and answered- very useful! Perhaps you could also raise any issues that we haven't asked so far that you know we should be thinking about, too?
Re: Greetings (and Privacy Issues) - Sandra Coburn - Tue, 11 Nov 2003, 11:15
I am pleased you have found the discussions useful so far.
One issue that can arise for Registered Training Organisations, but which has not been touched on in the questions so far, is privacy.
Privacy laws dictate how organisations can collect, store, access, use and disclose ‘personal information’ and ‘records’. Personal information means any information or opinion, whether true or otherwise, about an identified or identifiable individual. A record could include a document, database, film or photograph.
Privacy may become relevant when, for example, an RTO is dealing with personal information or records in relation to students, such as:
* enrolment information
* email addresses
* details regarding email and internet usage
* information submitted as part of student assessment
* photographs or film footage of students on campus.
Relevant legislation exists at the Commonwealth and State level. Under the Commonwealth Privacy Act the National Privacy Principles (NPPs) are the applicable standard. The NPPs allow the use and disclosure of personal information providing that it directly relates to the purpose for which the information was first collected and that the person to whom the personal information relates would reasonably expect their information to be used in that way.
Your organisation is likely to have a privacy policy that sets out its practices on dealing with the collection and subsequent use of personal information. This may provide useful guidance when dealing with privacy issues.
Moral Rights - Fri, 7 Nov 2003, 13:58
Often practitioners inherit material and build on it or get it from a range of sources, often not too sure of the original author. These resources are used as either hardcopy material for handouts or compilations or for putting on the web.
Is it relevant that the resources produced belong to the employer, so it is acceptable that they are passed on and altered?
How do we go about acknowledging the work of the unknown author and are we infringing the Moral Rights Act by changing material?
What are the pitfalls we should be aware of in these circumstances and are there specific ways of overcoming these?
Re: Moral Rights - Deborah Browitt - Mon, 10 Nov 2003, 12:14
Although the copyright or economic rights in the work belong to the employer, employees retain moral rights in any copyright material they produce even if they do not own the copyright in the work. Moral rights are personal rights of an author and include:
(a) the right to have their work attributed to them;
(b) the right not to have their work falsely attributed; and
(c) the right not to have their work subject to derogatory treatment, which means treated in a manner that is prejudicial to their honour or reputation.
To attribute the author, the author may be identified by any reasonable form of identification. If the author specifies a particular way in which he or she is to be identified, and if it is reasonable in the circumstances, identification must be made that way. The identification of the author must be clear and reasonably prominent.
It is not an infringement of moral rights to fail to attribute, or change or otherwise treat a work if the action or omission was reasonable. Factors which are taken into account when determining whether or not it was reasonable in the circumstances include:
(a) the nature of the work;
(b) the purpose for which the work is used;
(c) the manner in which the work is used;
(d) the context in which the work is used;
(e) any relevant industry practice; and
(f) in relation to the right of attribution - any difficulty or expense that would have been incurred as a result of identifying and consulting with the creator.
In relation to unknown authors, if you have made reasonable attempts to identify the author, including such actions as consulting the publisher, or in the case of work produced at school – consulting relevant past and present teachers, but are unsuccessful, it could be argued that you do not infringe the moral rights of the author because of the defence of reasonableness.
An alteration or other treatment of a work will only infringe the right of integrity if the treatment is derogatory, which means it is prejudicial to the author's honour or reputation.
Apart from the defence of reasonableness, a further means of ensuring that you comply with moral rights is to obtain the consent of the author. For all works other than films, consent must be given in relation to specified acts or omissions, or specified classes or types of acts or omissions to which the consent relates. In the case of employees, general consents may be signed for the benefit of their employers which cover all or any of the works they create during the course of their employment.
synchronisation rights for student compositions and so on - Mon, 10 Nov 2003, 10:05
Our Digital Media and Screen teachers are getting a bit twitchy on clearance and copyright issues since a Crocfest participant pulled the plug. Anyway, I'm sending this to ask if you have (or know where I can get) clearance forms for things like synchronisation of a student's composition with film and/or incorporation of student media into TAFE promotional material, etc.
We have a couple of dubious looking examples floating around - but I was hoping you might point me to the good stuff.
Thanks for any help you might provide.
Re: synchronisation rights for student compositions and so on - Sandra Coburn - Tue, 11 Nov 2003, 11:20
By way of explanation for everyone else, [the] question deals with a situation where his RTO wants to avoid infringing copyright, by obtaining permission (ie a license) from the copyright owner to do what would otherwise be an infringing act. I have assumed here, that you are not talking about the complete transfer or sale (ie an assignment) of rights in the student’s copyright work.
Unfortunately, the complexity of copyright and contract law makes it difficult to provide a ‘one size fits all’ copyright licence. However, your RTO’s legal advisor may, after consultation with you, be able to prepare a standard copyright licence document (or series of documenets) based on your organisation's particular needs.
Some of the issues your lawyer is likely to discuss with you when preparing a copyright licence include:
* the nature of the copyright material of interest – for example is it an artwork, film, sound recording etc;
* the uses that you want to make of the copyright material – it is important to ensure the license covers all desired uses, for example you might want the right to use, reproduce, communicate, publish and adapt the copyright material;
* the duration, or term, of the license;
* whether you will require an exclusive license or whether the copyright owner will be permitted to grant a similar license to another person;
* the territory, or geographical area, in which the licensed rights may be exercised;
* whether you will pay a license fee to the copyright owner;
* whether you require consent to infringe the copyright creator’s moral rights – ie. to fail to attribute authorship of the work or to subject the work to potentially derogatory treatment. See Deborah Browitt’s posting titled ‘Re: Moral Rights’ (dated 10 November 2003) for more detail on moral rights; and
* the circumstances under which it must be possible to terminate the license.
I hope this is of some help.
Internet addresses - Wed, 12 Nov 2003, 16:06
When providing reference materials to students how far into an internet site can you go? Do you give the home page reference only and let students click on links from there?
Re: Internet addresses - Sandra Coburn - Fri, 14 Nov 2003, 11:45
Your question highlights the distinction between providing hyperlinks to a website’s home page and ‘deeplinking’. Deep-linking is the term used to describe a form of linking that permits users to bypass a website’s home page and go directly to an internal webpage.
As we have previously mentioned, the Australian legal position in relation to hyperlinking remains unclear. There is currently no Australian law regulating the nature of hyperlinking on the Internet, and whether deep-linking is permitted.
You should be aware though, that some website operators have expressed concerns about deep-linking to their site because it permits users to bypass any advertising or important notices present on the homepage.
Your organisation can help minimise its risk of a claim that hyperlinks on its page infringe the risk of any website operator by:
* Where practical, seeking written permission from owners of the linked-to websites to hyperlink to their site;
* Linking to the home page where it is practical to do so; and
* Observing any terms and conditions on the linked-to site regarding hyperlinking to that website.
Further tips for minimising the risks associated with linking to third party sites are provided in Deborah Browitt’s response titled ‘Linking to 3rd Party Sites’ (dated 7 November 2003).
Liability for content entered on a discussion page - Wed, 12 Nov 2003, 17:16
Hope you can help clarify the legal position associated with the following action:
1. If a NSW Government organisation was to set up a web page, which included a discussion page, and they invite members of the public to post comments on the site and share their experiences about their dealings with the organisation, can the organisation be held liable/accountable for the content entered by discussion participants?
Re: Liability for content entered on a discussion page - Sandra Coburn - Fri, 14 Nov 2003, 16:04
Dear Sally
An organisation operating an online discussion page may be liable, in some circumstances, for the content entered on the site by participants to the discussion.
Your question raises a wide range of potential legal issues. It is not possible to fully explore all the issues in this forum, or without receiving more detailed information regarding the nature of the discussion site. We would suggest that the NSW Government organisation seek specific legal advice in relation to establishing the website.
Some of the general areas of potential liability include:
* exposure for defamation if a user posts content of a defamatory nature. Given that a separate cause of action arises each time the defamatory material is downloaded and read, liability for such material could be considerable. (Refer to other questions on this site for a further discussion regarding defamation, including Deborah Browitt's response titled 'Re: Defamation, slander, consumer related questions' on 5 November 2003, and my response titled 'Publication on the Internet' on 7 November 2003);
* copyright infringement where a user posts copyright material on the discussion board without the copyright owner's permission. Such liability may arise:
(a) directly, if the organisation itself does an act that is an infringement of copyright (for example, by reproducing the infringing material)
(b) indirectly by authorising the copyright infringement. Liability for authorisation depends on the degree of control the organisation has over the user (ie its ability to prevent the infringement) and whether the organisation took reasonable steps to prevent the doing of the infringing act;
* breaches of an author's moral rights (refer to Deborah Browitt's response titled 'Re: Moral Rights' dated 10 November 2003 for more information). As with copyright infringement, liability may arise directly (though an act done by the organisation itself ) or indirectly (by authorising the infringement);
* breaches of privacy obligations; and
* breaches of restrictions regarding online content, including those dealing with obscenity, pornography, discrimination.
The legal risks associated with establishing such a discussion page can be minimised to some extent by the organisation taking steps such as:
* vetting material posted on the site in order to identify and remove problematic material early;
* including a disclaimer on the site which attempts to exclude the organisation's liability in relation to material posted by users;
* requiring users to enter an online contract prior to posting any material on the site. Such an agreement would set out the conditions of use for the site; and
* providing an online mechanism by which users can lodge complaints regarding the nature of content posted on the site, and implementing procedures for dealing with offending material.
Unidentifiable material/owners - Thu, 13 Nov 2003, 11:27
I have a question about material where the author/creator cannot be identified, such as the jokes that are sent via email and images or sounds within "spam" type emails etc, where the 50 year copyright exclusion zone isn't likely.
1) If I share a joke I've received in an email in one of the social forums in the Community, am I breaching copyright? How would I do this safely/legally given that it would be impossible to try to locate the author?
2) If I want to use an image or sound in a discussion forum that I've received within an email, it would again be impossible to locate the owner of the image - is there anything I can do that would allow me to use the image? (eg in books I often notice sentences like "Every attempt has been made to locate the author of . If you are the owner please contact the author so that we can formally acknowledge your ownership" type of thing - is there a digital equivalent?)
Re: Unidentifiable material/owners - Deborah Browitt - Fri, 14 Nov 2003, 11:12
The issue you have raised about unknown copyright owners is a difficult matter for copyright users and unfortunately I cannot provide much comfort in my response.
The two questions raise many of the same issues and will be discussed together. Firstly, you need to consider whether or not the joke, sound or image attracts copyright protection. In relation to the joke in particular, it may be that copyright does not subsist in the joke as it is too insubstantial in purely quantitative terms to constitute a literary work and may fail the test of originality. The position in respect of personal emails containing information such as jokes is not entirely clear as the Attorney General has previously indicated in a news release dated 4 March 2001 that forwarding personal emails was unlikely to attract copyright protection. However, under the Copyright Act, the position is that copyright subsists in an original literary work in material form and therefore many emails, even jokes, can be protected by copyright. By sharing the joke you are at risk of infringing one of the copyright owner's exclusive rights. If you share the joke by email you may be infringing the right of reproduction and the right of communication. It is possible that certain copying and forwarding of emails is authorised under an implied licence but the existence of an implied licence is not certain and you would be taking a risk in relying on it.
Assuming that copyright subsists, to ensure that you do not breach copyright when doing such actions as forwarding a joke or using an image or sound in a discussion forum you need the permission of the copyright owner. Anonymous works are protected under the Copyright Act for fifty years from the date of first publication. The fact that an owner is anonymous or you consider it impossible to locate the owner as you have tried and failed to locate the copyright owner does not mean that you are entitled to do any of the exclusive rights of a copyright owner without permission. Unless you come within an exception in the Copyright Act (such as fair dealing for the purposes of research and study), you must obtain the copyright owner's permission.
You also need to be aware of the moral rights of the author, particularly the right of attribution in these circumstances. For the right of attribution, there is a defence of reasonableness (refer to earlier response on moral rights). The same defence of reasonableness is not available in relation to the copyright owner's economic rights.
Where people cannot locate the copyright owner to get the relevant permission, they might still copy the work having made a commercial decision on the basis of a risk assessment including the risk of someone bringing an infringement action. As you have noted, some people also include a note saying something like "Every attempt has been made to locate the author of . If you are the owner please contact the author so that we can formally acknowledge your ownership". This note is no defence to infringement, whether in the digital environment or otherwise.
International students - Thu, 13 Nov 2003, 16:08
As many training providers have online students overseas, are there any particular issues that they should be aware of regarding contracts or copyright and other related IP areas?
Re: International students - Sandra Coburn - Mon, 17 Nov 2003, 10:01
The legal issues identified on this site as being relevant to Australian training providers, are generally applicable whether Australian or international students are being taught.
We are unable to comment here on any issues that may arise as a result of laws in countries other than Australia. You should seek legal advice if you have a particular concern about dealings with an international student.
Examples of issues that could arise in international dealings with persons over the Internet are:
* which country’s laws will govern the contract and which courts will have jurisdiction to hear any dispute. We suggest that any contract contain a clause specifying that the laws of the relevant Australian State are to apply and that the parties submit to the jurisdiction of the courts of the relevant Australian State;
* the enforceability of the terms of any online contract;
* the application of any intellectual property or other international treaty, such as the Berne Convention in relation to copyright. (Refer to Deborah Browitt’s response titled ‘Re: Intellectual property protection for selling product overseas’ dated 10 November 2003); and
* the potential exposure to a defamation action in the country where a publication is accessed. (Refer to my response titled ‘Re: Publication and the Internet’ dated 7 November 2003).
