Protecting your intellectual property online

NeTT 1 June 2010Last Updated: 12 October 2021

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How does the Web 2.0 mindset affect copyright? What is the fairway to reference other people’s content these days?

And, most importantly, what can you do to protect your intellectual property when it’s online? Luke Telford investigates.

Determine your content goals

“Proper planning is the key,” says Victor Ng, technology and intellectual property (IP) lawyer with Logie-Smith Lanyon.

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“The reality is that most businesses can’t protect 100% of their intellectual property 100% of the time. Businesses need to assume that some infringement will occur and frame their IP strategy with that in mind. I regularly tell clients that the old copyright terms – no copying, no reproduction, no distribution, etc – are often not relevant in the age of Web 2.0,” he says.

When considering putting content on your site—be it video, images or text—decide what you want to achieve with it before you share it with the world.

“It makes sense for a business not to put its valuable IP up on the net for the taking. Keep the crown jewels locked up,” says Ng.

Establish how copyright protects your content

As soon as a work is recorded in some way, it is protected by copyright.

“So, in the digital environment, almost everything we do puts us in the copyright zone,” says Brian Fitzgerald, professor of intellectual property and innovation at QUT law school, and project leader of Creative Commons Australia.

Partial appropriation with attribution is possible, but hinges on whether the portion used are considered substantial.

“Under Australian copyright law, ‘substantial’ really means important or distinctive. Even if a small percentage of work has been used, if it is an important or distinctive part of the work, there is a risk of infringement,” says Ng.

“It would probably be fair to reproduce an entire photograph for the purpose of a news report. On the other hand, it wouldn’t be fair for a book reviewer to reproduce the entire novel being reviewed.”

This means that if you appropriate some content online without permission or exception, or you find the same has happened to some of your own content, whoever is the copyright holder can pursue the matter in court.

Yet, there are more civilized ways of fixing or avoiding such situations.

“No one wants to get into litigation because it costs a lot of money, so the way that many of these issues can be dealt with is by simply talking to people via the internet like you would talk to them in person,” says Professor Fitzgerald.

“From a legal perspective, the basic rule is that you need the permission of the copyright owner to be able to reproduce and communicate that material to the public.”

This need for permission is what informed the evolution of the Creative Commons initiative.

“Ultimately, the benefit of creative commons is that it gives permission in advance,” says Professor Fitzgerald.

There are six licenses offered by Creative Commons. All use the notion of correct attribution as a basis and apply varying restrictions that give direction regarding commercial use and derivative works.

Gaining permission and policing infringements

If a piece of content isn’t licensed under Creative Commons, the best way to find out if you’re allowed to use some or all of it is to ask the owner for permission.

There are a number of approaches that can be taken when you find your IP has been infringed online.

“Get in touch with the person who has published your material. Let them know that the content belongs to you and can only be used with your permission,” says Ng.

Although the prospect of international appropriation raises some slight legal complications, it’s important to remember that, for now, the same implicit principles of sharing and attribution apply. Though online copyright is currently a grey area, the same respectful protocols should take precedence. #