Social media copyright – a tangled web

Using material uploaded to the internet by users of social-media websites like YouTube, Facebook or personal blogs without permission is a risky approach for major publishers, barrister Christina Michalos of 5 Raymond Buildings warned the Media Law Conference.

She highlighted the case of Virgin Mobile Australia, which is facing a lawsuit for libel after it used a picture of a Texas teenager from the photo-sharing website Flickr in an advertisement. TV network Fox, meanwhile, faced complaints after using a photo of a blogger’s pet pug without permission.

‘It’s not the case that the internet is a part of the world where copyright doesn’t apply,’Michalos said. Except for rare cases where users have Creative Commons licences implying consent, publishers usually have only fair-use defences in cases where social-media users allege infringement of their copyright, she said.

Many publishers have adopted a ‘publish now, pay later’approach to using social-media material without permission, risking copyright infringement cases instead of seeking permission from online copyright owners.

But this approach could prove expensive, Michalos warned.

Although licence fees claimed by the copyright owners would generally be low, any infringement claims would also involve publishers paying out for legal costs and possibly additional damages.

The Intellectual Property (Enforcement) Regulations contain a provision that if defendants knowingly engage in infringing activities, damages are appropriate to the prejudice suffered by the claimant.

‘In some cases, such as the Allison Stokke case, they can end up being quite considerable, because they involve somebody whose life is completely disrupted because they’ve become a celebrity overnight,’she said, referring to the teenage US athlete who last year found herself an unwilling sex symbol after a photograph of her was passed around various blogs.

Journalists would rarely have a defence if claimants seek these damages, she warned.

‘In cases where you are copying from the internet as a media organisation or journalist, you are going to have a hard time demonstrating that you didn’t know that you were copyright infringing,’she said.

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