VIC Fair Deal and Copyright Infringement?

[danny bell]

Have had advice today from a legal friend who said:

"You cannot use images that are copyrighted unless you have the consent of the owner...but then Australian copyright law says this:


"The main exceptions to copyright infringement in Australia come under the general heading fair dealing. Fair dealing is comparable to the United States' fair use; it is a use of a work specifically recognised as not being a copyright violation. In order to be a fair dealing under Australian law a use must fall within a range of specific purposes. These purposes vary by type of work, but the possibilities are:

• review or criticism
• research or study
• news-reporting
• judicial proceedings or professional legal advice
• parody or satire (added by the Copyright Amendment Act 2006)

In order for a certain use to be a fair deal, it must fall within one of these purposes and must also be 'fair'. What is fair will depend on all the circumstances, including the nature of the work, the nature of the use and the effect of the use on any commercial market for the work.

I run an online Newspaper and use screenshots for various articles...but I am being approached by a legal firm to cease using images because I am infringing on copyright?

 

[Rob Legat - SBPL]

And you may be. Fair dealing (not fair use) is not a concept which can be applied without a thorough consideration of all the relevant facts.

 

[danny bell]

So taking a screenshot for news is not allowed? How do 1000's of other independent papers get away with it then?

 

[Rob Legat - SBPL]

I didn’t say that. What I said was a thorough consideration of the facts was needed. Copyright infringement is a very technical area in practise.

 

[danny bell]

So noting is certain then when it says:

In order to be a fair dealing under Australian law a use must fall within a range of specific purposes. These purposes vary by type of work, but the possibilities are:

• review or criticism
• research or study
• news-reporting
• judicial proceedings or professional legal advice
• parody or satire (added by the Copyright Amendment Act 2006)

 

[Tim W]

...from a legal friend...

Do you mean "lawyer", or not?

So taking a screenshot for news is not allowed? How do 1000's of other independent papers get away with it then?

You can produce an infringing copy by taking and/or publishing a screen shot, sure.

And other publishers get to do it because for most of them,
it isn't worth the copyright holder's trouble (in terms of dollar cost)
to even pay a lawyer to write a cease and desist letter,
let alone run a breach of copyright action.
This is especially the case where the would-be defendant is not really a commercial publisher,
but just a self-confident blogger with no real capacity to pay a judgement debt and costs anyway.

 

[danny bell]

A legal student...so what's a ball park figure on a cease and desist letter?

 

[Tim W]

Asking a law student for advice is like
asking a First Aider for advice about cardiac surgery.
You can do it, but it's a super-high-risk choice
(oh, and the law student, like the First Aider,
shouldn't be doing it anyway...).

You don't care about the fee for a cease and desist letter.
You care about how somebody has enough of a problem with you
to write you one.
And how they will most likely crush you like a beetle under a boot
if you continue to do what they have asked you to stop doing.

Further, I agree with @Rob Legat - SBPL in that it's both a technically complex area,
and pretty near impossible to speculate without seeing what you're actually doing.