LEGALLY SPEAKING - Paul Sugden

Copyright Creativity and the Internet

How protected are images on a website? Can I download them for a PowerPoint presentation that I want to give at an important international conference? What is fair use?

In the past we have considered names on the Internet, now for the really creative bit! The Internet is just a linking of computers worldwide that allows computers to talk to each other using computer programs. Computer programs are protected by copyright as literary works under s10 Copyright Act (Cth) so surprise, surprise the internet is a form of creativity and is protected in and by the same act and in a similar form as your works of creativity, be they installation art, tapestries or drawings for designs etc.

Hence the Internet is creativity like yours, just in a different form of expression - being the codes etc that make programs. Now with a textile creative you may establish a website for your business and put images of your work on your website. The works that you photograph and put on your website are still your creative works even though they are in a different form, being a photograph in a digital format. If someone then copies your work from seeing the work on the website you can sue them for infringement of copyright in your creative work (so long as a substantial part of the work has been reproduced - see my earlier articles on copyright).

One of the great things about the web is that sites such as google.com allow people to search for images on the net, not just for sites. So by putting in a search term such as "reindeer" or "carolers", images from different sites related to these subjects will appear and people can and do use them. Most though do not get used for a commercial purpose and so we do not hear of copyright infringement proceedings. This issue about use of photographic images from a website happened in America in a case of Kelly v Arriba Soft Corp280 F3d 934 (2002). In this case Leslie Kelly was a photographer who specialised in photographs of the American West and he displayed his photographs on his website under license to other websites. Arriba ran a search engine service that looked for images and displayed images as thumbnails in their search results. Once a person clicked on the results they were displayed as full images in the viewer's computer.

The court held that the use of the thumbnails in the search engine was valid, and linking to the original site from this image was valid, but not the use of the downloadable full image as this could be reproduced and the photographer would lose sales from these downloads. The use of the full size images breached the American law of fair use, and the artist's public display right.

In Australia fair use is dealt with under issues of passing off and considerations of commercial use. The reproduction of the full images as a download can be an infringement of the artist's copyright in the image. Similar cases have appeared with Playboy where sixty images were copied by a rival site - Webworld Inc, and Playboy won the action and obtained damages for the use of the images by Webworld Inc.

What is the importance for the textile creative, if you are producing innovative material and it is protected under copyright - is it also protected as the right of communication if displayed on the internet? If the work that you display is copied from this display then your action is one of copyright infringement.

The Internet is not to be feared, as it is just another creative medium that follows the same laws of copyright that you as a creative have been dealing with in the physical work you produce. So be creative and the law will give protection.

An additional issue is what if I download an image from the web to use in a lecture about a particular style or creation? (I do this for teaching the copyright law for example, as it is a very visual subject). In a very strict approach to copyright law this download can be considered an infringement of copyright, but if it is for the purposes of lecturing and teaching then generally this comes into an exception dealing with study or review in Australia. In the USA this would come under their fair use doctrine, as there is no general commercial use of the product. If the aim of the lecture is to make people aware of the person and their work then there is no copyright issue. If you start selling copies of the images you downloaded then there is a problem as this comes into the area of taking sales from the artist and this would not be a fair use of the material.