Bloggers and copyright

Stan from South Pacific Federation Project has emailed me with a query about copyright and use of other people’s material on blogs. Copyright isn’t my specialist area (see Kim Weatherall’s blog if you want someone who really knows about this area), but I have a basic working knowledge of the principles.

Nevertheless, I thought it might be useful to post Stan’s query and my reply. Stan asks:

Being a lawyer and all, and a blogger at that, I was wondering whether you could offer a view on the legality of retaining a copy of a newspaper article on a blog.

I’ve often done so in order to retain some information for later posts. My work at the South Pacific Federation Project often involves quoting good sections of opinion and comment in The Australian (for example), but all of that stuff disappears into archives after about three months. I’m vaguely aware that you can copy small sections of various articles though I can’t remember exactly how much.

I recently saw another blogger copy an entire article in the US. Interestingly enough he was a trial lawyer and was able to provide an opinion that his actions were “fair use” and inside copyright law. He even challenged the newspaper’s counsel to contact him if they disagreed.

I replied:

I’m not a copyright law expert, but in general terms I understand that the following summary from the Copyright Agency Limited website is correct:

exceptions to infringement

Under the Act there are exceptions to infringement that allow some uses of copyright material without permission. These exceptions can be split into two categories, free of charge copying, and copying that requires payment.

The major areas of free of charge copying are:

fair dealing for the purpose of research or study:

allows a student or researcher to copy protected material. Copying 10% or one chapter of a published literary, dramatic or musical work of 10 pages or more, and one article from a periodical, is deemed to be fair,

fair dealing for the purpose of criticism or review:

allows reviewers to make a fair use of copyright material provided they acknowledge the work …

You mentioned an entire article. That would be OK if your purpose in copying it was research, study or criticism. However, if you just intend copying it and posting it on the web because you think it’s an interesting article that you would like the public to continue to be able to read, that probably wouldn’t be covered by the exemptions, and would be an infringement of copyright. News Ltd charges for access to its archives, and might conceivably take action if they discovered someone was posting old articles from The Australian on the Internet. So might the author of the article, who may well have rights additional to those of the newspaper.

On the other hand, keeping articles on your hard drive for your own reference is quite OK, though still subject to the “one article per periodical” rule. However, it’s extremely unlikely anyone is ever going to check what newspaper articles you have saved on your hard drive, so it probably isn’t worth getting too concerned about that.

It’s also probably worth reflecting in general terms on the seriousness of any breach and the likelihood of being sued. If you’re a solo blogger with a modest readership and you’re not doing it for commercial purposes, it’s unlikely that any copyright holder would bother to sue you (although I can’t give any guarantees, so don’t bother suing me if it turns out to be wrong in your case). They would probably just demand that you removed the offending material, and would probably only take court action if you failed to do so or continued further copying after being warned. It’s certainly legally possible for copyright holders to sue without needing to be able to prove damage, but they usually wouldn’t do so in the absence of real, provable commercial damage, unless the copyright infringer was a persistent one and they wanted to make an example of him or her to deter others. Hence current litigation by record companies against large-scale P2P music downloaders (individals swapping songs illegally using software like Kazaa, Morpheus etc).

Copying photos or cartoons is a clear breach of copyright, because they are complete works in their own right (not just parts of works). Many bloggers seem to do this with complete disregard for copyright. I’ve occasionally done it myself*. Someone could be sued one day for this sort of conduct. On the other hand, blogs are non-commercial publications that don’t present any serious threat to the mainstream media (in fact arguably it’s a symbiotic relationship), so I suspect that mostly newspapers don’t care all that much about bloggers stealing their photos and cartoons. Individual cartoonists or photographers might conceivably be a different matter (because, like writers, they may have legal rights additional to those of the newspaper in which their work was published).

Newspaper proprietors might, however, care if a really big (in audience terms) blogger like Tim Blair started reproducing photos and cartoons, because his readership is potentially large enough to make a commercial impact if he started to make his blog look like an online newspaper and he did so by using newspaper photos and cartoons without permission. They might also care if a blogger used that sort of material consistently over a long period. Left wing blogger Gary Sauer-Thompson, for instance, reproduces newspaper cartoons on his blog just about every day. Unless he has permission to do this (which he might for all I know) he’s breaching copyright, and there’s a high probability that he will get sued one day. Even though his blog is anything but prominent, rights holders may well wish to make an example of him given how persistently he infringes.

*Although I’ve always acknowledged a photo’s source where it’s from a newspaper etc. Nevertheless, I’ve decided to avoid posting newspaper photos at all in future. Troppo Armadillo is sufficiently prominent and widely read (though nowhere near Tim Blair’s readership) that it might conceivably be a target of litigation.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Stan
Stan
2022 years ago

Thanks Ken. Just what I was looking for. Cheers.

David Tiley
2022 years ago

The photograph area is interesting because there is a reverse twist. We can just hotlink to a photo so we never handle it and I guess its perfectly legal. But apparently smaller site owners find this very annoying because it automatically increases their download.. So it is preferable to run them off our own sites.

Most photos of interest anyway are file photos with dozens of available sources around the world – what one paper archives another will leave open.

I am very cautious about using privately owned photos. How would you feel if your child turned up in someone else’s collage? Rodents, mind you, don’t really matter.

I am careful about attributing images. I loathe that thing where pictures float around with no indication of their origins. Once the chain is broken, it can’t be reconnected unless the image is pretty mainstream. I also try to notify about cropping, unless it is trivial and obvious.

Where would we be without the google image button?

Stan
Stan
2022 years ago

One way you can avoid the bandwidth problem is to post your own copy using the blogspot photo blog option. It’s free. I actually maintain a separate photo blog for this purpose and link back to the photos, though I have found that once it’s uploaded to the blogspot server you can still link back to it even if you delete the post. Of course your comments about attributing the source then become important.

Francis Xavier Holden
2022 years ago

Ken – as far as tracing so called porn images of Celebs on the net the Official Fake Detective http://www.fake-detective.com/ is a hoot.

Peter Ransen
Peter Ransen
2022 years ago

Not sure if I can recall another moment of a lawyer giving free advice. It’s very thoughtful and appreciated. Defamation has been my major interest in all this. There was one radio discussion on blogs where the point of defamation was raised, in the context that the blogger may be responsible for the content of his or her commenters. If it hit, it would only happen once, and there’d be no blogs, but imagine that poor bugger.

TJW
TJW
2022 years ago

David Tiley your comment is particularly relevant to the website http://www.Fark.com where they run a photoshop thread. A lot of the humour is very black in nature but a few times I’ve observed people crossing the line e.g. an apparently private photo of some kid on chemotherapy that was found by google image search and used in a satirical manner.