Social Media is Unavoidable
We’re confronted with social media in its various forms everyday. President Trump is endlessly tweeting and the person next to you on the bus is scrolling through Facebook. You may have even experienced the phone-focused pedestrian walking into you on the street. There are other social media forums such as Instagram for photo-centric posts, from beach trips to nightclub outings. The thing they all have in common is they involve posting content – text, photos and/or videos – which creates a risk of online copyright infringement.
What is Copyright?
Copyright is the right an author has over their own work. A ‘work’ can be written such as a book or article, or a piece of music, a painting, or a design such as an architectural drawing. The expression of the work is important in determining copyright, rather than the idea. For example, if you read a book about an historic event, you could also write a book about that event. Copyright would, however, prevent you from copying sections of the original book as your own. In the same way you cannot use someone else’s photo of a landmark without their permission, but you may take your own photo of that landmark to use online.
Furthermore, it’s important to note that copyright does not relate to an idea. If you come up with a novel idea, someone else could still write about that idea as long as they didn’t copy your explanation of it. To have the protection of copyright, the ‘work’ must be sufficiently distinctive in its expression.
Are You Infringing Copyright on Social Media?
On a commercial level, it’s commonplace for businesses to ask to be ‘liked’ or ‘followed’ on social media. To gain and maintain a social following you need to provide valuable content to your audience. If this content is not purely your own, you might be infringing copyright.
Let’s take images as an example. Because copyright can exist in photos, posting someone else’s photos without their permission on social media is likely to infringe copyright. The owner – usually the photographer – has copyright over the photos. Companies such as Getty Images and Shutterstock sell photos online. When you purchase an image from them, you are purchasing the right to use the image. Therefore to avoid infringing copyright online you should consider purchasing the rights to images, or taking your own photos.
The Consequences of Copyright Infringement
There are serious consequences if you are involved in copyright infringement. If you are posting on social media on behalf of your company, the ramifications can apply to both you and your employer. The owner of the content could sue you, leaving you liable for damages and legal costs. Your employer could terminate your employment, due to the reputation damage it has caused.
According to the 2017 Sensis Social Media Report, 79% of Australians are active on social media. If we look globally, there are 2.46 billion social media users according to Statista. Social media is so widespread that publishing content without permission may easily come to the attention of the copyright owner. Accordingly, you should keep copyright in mind if you are tempted to plagiarise a written piece or use an image or piece of music created by someone else.
Get in touch for copyright or social media advice for your situation.
Is My Recipe My Intellectual Property?
If you think your chocolate cake recipe is exceptional, or believe you’ve designed the next ‘big thing’ in the culinary world, you might want to protect your recipe. There are different types of protection in intellectual property, for example:
- Registered design; and
- Trade secrets.
Can You Patent a Recipe?
A patent is a legally enforceable right granted for a device, substance, method or process that is novel, inventive and useful.
The Patents Act 1990 requires applicants to satisfy the inventiveness test, ie require an inventive step that makes the unique. The Patents Commissioner can refuse to accept a patent request because the substance is either a simple mixture of known ingredients, or is produced merely by adding ingredients together (admixture).
A patent will generally only be applicable to pseudo-scientific recipes.
Can Copyright Apply?
The Copyright Act 1968 protects original expression of ideas, but not purely the idea itself. Once an idea or creative concept is documented, it is automatically protected by copyright in Australia.
In relation to a recipe, copyright can protect a recipe documented in a book in the way it’s written, but not the way it’s made. Therefore copyright does not extend to recipes if they are for the concept of something well known and reproduced (e.g. pasta or blueberry muffins).
If you publish a recipe book you also cannot prevent others making the dish or people writing their own descriptions of how to make it. Nor can you prevent someone publishing their version of your recipe.
Can You Use a Registered Design?
If your product’s appearance is unique, it is possible to register the design. A design is what makes a product look the way it does, e.g. its shape, configuration or a notable pattern. When applied to a product these things give it its unique design. A registered design does not protect how something works.
For instance, the creators of the “stand and stuff” taco registered its unique design. This type of intellectual property is rarely applicable when it comes to recipes.
Can You Protect Your Recipe as a Trade Secret?
If you want Grandma’s secret chocolate cake recipe to stay secret, one available option is protecting it through a trade secret.
A trade secret is intellectual property that it is up to you to protect – that is, it is not registered. This is generally done by ensuring employees or distributors sign confidentiality agreements.
Examples of trade secrets include:
- the recipe for Coca-Cola
- the combination of herbs and spices used in Kentucky Fried Chicken.
The Coca-Cola company has used trade secrets to keep its formula from becoming public for decades. It never applied for patent protection, so it was never required to disclose the formula.
Common law provides protection for infringement of trade secrets and breach of confidentiality agreements. A trade secret, however, doesn’t provide legal protection if a competitor has an identical product. It’s also difficult to prevent departing contractors and employees from taking the knowledge with them.
Important Tip: You could include a non-compete clause in all your contractor or employment agreements, as well as asking them to sign a confidentiality agreement.
If you want to protect your recipe as intellectual property you may have to get creative. It is best you seek legal advice to see what option will work best for you. To speak with one of our friendly solicitors please get in touch with us on 9963 9800.
Earlier this year a Los Angeles Court handed down a decision that the rock n’ roll band Led Zeppelin did not breach copyright in their 1971 song ‘Stairway to Heaven’. The song, being arguably their most famous and iconic song, (the staple for guitar playing teenagers) was alleged to have copied the famous flat-picked arpeggio chord progression from a lesser known song (and band) ‘Spirit’ by Taurus. Led Zeppelin argued that the chord progression was so common, that it had been used for hundreds of years, and it was a matter of coincidence that they sounded similar. The jury agreed and the legacy of the song remained.
This case brings to mind another case involving an iconic Australian song, a mainstay of the local pub sing-along, ‘Down Under’ by Men at Work. In February 2010, the Federal Court of Australia found that the song copyrighted another iconic Australian song ‘Kookaburra’. Throughout ‘Down Under’ a flute riff is played, which was found to contain the same harmony and notes as ‘Kookaburra’. Men at Work claimed that it was a coincidence, and they did not have the intention of copying the melody. The Court disagreed and found that the melody of ‘Kookaburra’ and the flute riff played during ‘Down Under’ were substantially similar.
The test for establishing copyright involves a two stage test: the resemblance between the infringing work to the copyrighted work; and the causal connection between the two. Once these two steps have been satisfied, the question then turns to the value of what is taken, rather than the amount. To determine this it will be the facts around the alleged infringement. The circumstances particular to a case is something that would be best discussed with a solicitor, as they will be able to gauge the likelihood of your claim succeeding.
If you suspect that a work you have created has been infringed upon, then it is important to contact a solicitor that knows about copyright law and understands the balance between concept of artistic freedom, and on protecting the rights of an artist.
What is Copyright?
Copyright is the exclusive right of owners to protect certain creative works from being copied by others without the owners’ permission.
What types of work does copyright apply to?
Copyright applies to artistic and creative works such as music, sound recording, text (for example, in books, reports and webpages), films, television commercials, radio programs, podcasts and computer programs.
When does copyright apply?
In Australia, copyright protection exists automatically from the moment content is created in a tangible form. This means the content has to be either written down, recorded, saved to disk or filmed. However, the work does not necessarily have to be published. Copyright will still apply to unpublished work.
In Australia, there is no formal registration process for copyright to apply to any work. Unlike a trademark registration, copyright protection automatically applies if:
- The work was original;
- The work was created by an Australian resident or citizen; and
- The work was either created or first published in Australia.
What are the limits on copyright protection?
Copyright protection protects the expression of a concept. It does not protect underlying ideas, styles, techniques or concepts themselves. The limits of copyright protection can be best understood through the following examples.
Example 1: Take for example the circumstance where you have an idea to build a particular online business. Before you even begin building the business, you attempt to validate the idea by sharing it with a friend. Your friend then goes and builds that exact online business in the exact way that you described it to them. You cannot pursue them for copyright infringement because there is no protection in underlying ideas.
Example 2: In this second example, you show your friend a particular website that you have built for your online business. Your friend then goes and builds a website which has the same functionality but looks completely different. Again, you cannot pursue them for breach of copyright because they have only copied the underlying idea, but have not copied your designs, text or other artistic works.
Example 3: In the third example, your friend builds a website with the same wording, designs and pictures as your website. In this example, you can pursue them for copyright infringement because they have reproduced your work without your permission.
The copyright symbol ©
Having a copyright symbol “©” or notice on your published work is useful to remind people that your work has copyright protection. However, because the protection automatically applies in Australia, not having a copyright mark does not mean that your work is free for anyone to reproduce, or that you have granted a license for anyone to use your work. Despite the automatic protection, our recommended best practice is to always have the copyright symbol on your webpages and other works.
If you wish to display a copyright notice on your website, you should have the following:
- The © symbol or the word “Copyright”.
- The year the work was first produced or created.
- The name and owner of the copyright (this can be your business name, company name or your own name).
Copyright vs plagiarism
Copyright and plagiarism are not the same thing. Plagiarism is when one person copies another persons work, and claims that work as their own work. Copyright on the other hand is the requirement to request permission from the owner of a work to use their work, communicate their work or display their work. For example, if you wish to play a film in public, you need to request permission from the owner of that film for a license to do so. If you play the film without requesting their permission, you are infringing on that owners’ copyright protection. If on the other hand you play that film and claim that you made the film yourself, you have plagiarized the owners work.
The importance of copyright
Copyright is important because the creators of work should have the right to decide how, when and where their work is displayed. It is particularly important for artists and businesses because they have the ability to charge fees (usually license fees) to people who wish to use their work. Without copyright protection, people would be unable to earn money from the work they produced.