Common myths about copyright online

Copyright extends well beyond the physical manuscript to all kinds of media, including source code for software and user generated content online.  

In fact, you need to think about copyright and its implications when posting, sharing, streaming, downloading, and generally engaging with most of what you see in digital form on the internet today.

Here are five common myths about copyright online you should be aware of.

Myth #1:  Copyright doesn’t apply to content posted online

The first myth is that copyright does not apply to content posted online – that if a video or meme is posted online and publicly accessible, that means no one really owns it.

But this is rarely the case. Usually, the content should be viewed much like a hard copy book or a piece of music, where there is an owner of that work. You wouldn’t copy or republish a book, for example, without the permission of the owner, and the same generally applies to content posted online.

This even applies to memes that are widely shared online. Each of those instances of sharing is, if permission has not been granted, a potential infringement of copyright.

For example, in 2009, a high school in Germany published a student’s presentation that included a photograph by photographer Dirk Renckhoff. The student had downloaded the photo from an online travel blog and credited the website in their presentation. Renckhoff took issue with this and issued an infringement claim. This led the Court of Justice of the European Union to conclude that re-posting the photograph without permission onto another website constituted a “communication to the public” of the work and was copyright infringement.

Myth #2:  Copyright must be asserted to exist

The second myth is that copyright must be asserted to exist, and so, when someone posts a video without marking the content as “copyrighted” or with “©”, the content is free for anyone to use as they please. This is false.

In New Zealand, copyright exists whenever you create any original piece of work – and “work” in this context includes a piece of text, a video, or a photograph. Unlike a trade mark or a patent, there is no need to claim or register copyright in order to be protected. It kicks in automatically when you create an original work.

Myth #3:  But I didn’t take very much of the content!

The third myth is that you can copy some of a copyrighted work, so long as you don’t copy it all. This is also not true.

Infringement can be established not only for an exact copy but also when a “substantial part” is copied.

Copyright is a ‘qualitative’ right, meaning that what constitutes copying will depend on the quality of what is copied, not necessarily the quantity of the copying. Even one sentence from a whole novel could potentially amount to infringement, if that sentence is a key part of the work i.e., is qualitatively important.

Myth #4:  But it’s funny!

The fourth myth is that it is a defence to copyright infringement if the copying is satirical or a parody of the original. In the United States, there is a much broader ability to reuse copyrighted material for this purpose, under their “fair use” defence. Many people in New Zealand assume that this is also the case here. But it is not.

In New Zealand, there is no satire or parody defence to copyright. Instead, we have more limited defences (called “fair dealing”), which include the ability to copy for the purposes of criticism, or the purposes of private study. So resharing a meme, for example, can constitute infringement (where it does not fall within the fair dealing exceptions), irrespective of its hilarity or satirical value.

Myth #5:  Users won’t enforce their rights, right?

The final myth is an important one. You might think that copyright infringement is the name of the game on the internet, and no one really takes these legal concepts seriously. If you reshare a meme, is anyone really going to care?

The answer is: they might. Many individuals on social media probably won’t bat an eye if you repost their content, even if it’s on another platform. But this is not the case across the board. It is certainly not the case where businesses are involved.

In recent years there have been cases of high profile social media users being sued for the posting of content they do not own.

For example, popstar Dua Lipa has now been subject to two civil lawsuits for posting images on Instagram. Ironically, on both occasions the pictures have been of Dua Lipa herself. The photographer plaintiff in the most recent case, which is yet to be resolved, has alleged infringement of copyright, as Dua Lipa had not sought permission to post the images. Similar suits have been brought against other celebrities including LeBron James, Ariana Grande and Justin Bieber, and have either been dismissed or settled out of court.  

As the internet continues to evolve and ordinary users become more aware of the value of their content and their rights, we expect that the frequency of individuals seeking to enforce their rights will only continue to increase.

If you have any questions or require advice on the use of digital content, please get in touch.