Australian Court ruling highlights website content plagiarism risks

Google and other search engines will ignore content that you copy from another website

Two weeks ago we kicked off this blog with a general article on the importance of website content where we looked at content quality and the penalties Google imposes on websites that take unique content from one website and post it on their own as their own original content.

Another aspect of taking material from one website and posting it on your own website that we didn’t cover was the legal one of breach of copyright.

While some people take the view that anything they find on the internet is fair game and able to be taken and used for their own purposes, this is not the case and plagiarism and/or breach of copyright laws in most countries mean that those who take other peoples content and use it as their own, either with or without attribution to the original source, can face steep fines and even jail terms, in addition to having that content ignored by Google and other search engines.

Despite popular opinion to the contrary, copyright is automatically vested in the creator of these items without the need to register or apply the © symbol to each piece. While some bloggers and website owners think the chances of being caught stealing someone else’s material and using it for their own purpose is fairly remote, nothing is further from the truth and there are some very good tools available for tracking down unauthorized use

There is also the Digital Millennium Copyright Act (DMCA) that website owners need to be aware of. Basically the DMCA gives those who create unique text, photographs, sketches or musical scores automatic protection against theft, yes it is theft, from their work being used by other people without the originators permission.

Originators of text and photographs such as news organizations zealously guard their copyrighted material against plagiarism due to the cost they have invested in creating a story, photograph or other creative work.

The DMCA gives originators of creative works the ability to (1) demand the work be removed from the offending website and (2) file a complaint over the theft with the various search engines and domain hosting providers that can result in the website being removed and the website ignored by the search engines.

Once a DMCA infringement notice is filed with a hosting company or the search engines, they are duty bound to act. Having your website restored to search engine results pages (Serp’s) following suspension for a breach of the DMCA can be a time consuming affair.

When Thailand-based photo-journalist John Le Fevre found his photographs stolen and used by the Pattaya Daily News without authorization – for the second time – he captured the screen image as proof and then fired off an angry letter (as he did on the first instance) demanding the said material be removed from the website within three-hours, along with the threat of legal action and the filing of a DMCA notice with the hosting provider and search engines if the material was not removed.

Though the editor of the newspaper attempted to bluff her way around the situation, the offending material was removed within the time demanded and no further action taken.

For news aggregation sites, or organizations that provide industry analysis and reports to subscribers, the situation has always been akin to walking a tightrope.

Fair use of copyrighted material in website content

These organizations often work on the basis of Fair use. Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.

As outlined in Wikipedia: “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Generally most websites and creators of material will allow a part of their work to be used by other people, provided that attribution and/or a link to the original article is provided by those reproducing the material.

An interesting court case in Australia has seen the Federal Court of Australia, an Australian superior court of record, rule against one of the country’s largest publishing organizations, Fairfax Media, publishers of The Australian Financial Review (AFR), in a battle with Reed International, publishers of the LexisNexis and ABIX news and business information services.

The full story can be read at Fairfax Media loses copyright battle, but basically boils down to Fairfax, which operates a paywall for online news content published in the AFR, claiming copyright to newspaper headlines.

Fairfax claimed that: Reed’s summaries were intended to “substitute for the article for a very significant number of readers” and that Reed had breached copyright by reproducing some headlines and bylines verbatim. As part of its claim it submitted 10 examples.

However, Judge Annabelle Bennett found that none of the 10 headlines selected by Fairfax for the case “are capable of being literary works in which copyright can subsist. Even if the article/headline combination constitutes copyright work, Reed does not take substantial part of such a work.

“Reed’s conduct in reproducing and communicating The AFR headlines as part of the abstracts is a fair dealing for the purpose of reporting news such that Reed’s conduct would not constitute an infringement of copyright,” Justice Bennett said.

Marc Peter, director of marketing and technology at LexisNexis, said the ruling was, “a positive step in re-enforcing the long-standing view of copyright law that there is no copyright protection for de minimis works, such as words, titles and advertising slogans”.

For its part Fairfax is still considering whether it will appeal the ruling, with its chief executive Michael Gill, describing the judgment as “disappointing” and “not consistent with what is necessary to protect intellectual property in the digital media environment”.

Whether an appeal will be launched or not remains to be seen. However, the three-year legal battle adequately highlights the risks companies and bloggers face if they steal other people’s content.

Protracted legal battles such as this are expensive, distracting and time consuming for all parties involved and as we’ve already covered, irrespective of whether you win or loose in the courts, is not the only thing to be considered from a website owner or webmasters point of view.

It should be noted that this discussion on website content is only meant to cover works that people claim copyright in. It does not refer to works where the creator has surrendered claims of copyright by placing the work int he public domain, such as posting content to directory services or licensed with Creative Commons licenses.

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• copyright • Creative Commons • original content • plagiarism • website content

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