On 5 February 2009, the Federal Court made orders recording that News Ltd had infringed copyright in footage of Australian Football League (AFL) matches exclusively licensed by the AFL to Telstra Corporation Ltd. The court orders stated that News Ltd had infringed copyright in the footage by posting on its own newspaper websites hyperlinks to the footage available on YouTube. The orders were made with the consent of the parties following an undertaking by News Ltd not to provide on any of its newspaper websites hyperlinks to AFL match footage available on YouTube at any time before 31 December 2011, being the date on which Telstra's exclusive licence with the AFL expires.
Because the order was made following settlement between the parties, the court did not test Telstra's allegations of copyright infringement or consider submissions made in response by News Ltd. Accordingly, the court ordered that News Ltd had infringed copyright in the footage without specifying how News Ltd's actions breached the Copyright Act 1968.
This is not the first time Telstra has taken action against a news provider for alleged infringement of its exclusive rights to broadcast sports footage. In 2007, Telstra took action against Premier Media Group Pty Ltd (PMG) and News Digital Media Pty Ltd (NDM) (each owned by News Ltd) for breaching its exclusive right to broadcast footage of National Rugby League (NRL) matches over the internet and mobile phone networks.
PMG supplies Fox Sports News content (including footage of NRL matches shown in news reports broadcast on Fox Sports television channels) to NDM for publication on the Fox Sports website. Telstra alleged that PMG had infringed its copyright in the NRL footage by communicating, or authorising the communication of, the NRL footage over the internet and via mobile phones in breach of its exclusive licence with the NRL. Accordingly, Telstra sought an interim injunction prohibiting the continued communication and publication of the NRL footage by PMG and NDM, pending the hearing of the full case.
The court refused to grant the interim injunction, noting that at final hearing the reproduction of NRL match footage by PMG and NDM may be found to be a fair dealing for the purpose of reporting news and therefore not an infringement of copyright. As with the AFL case, the matter was settled between the parties without the court making a final ruling.
Under the Copyright Act 1968, a copyright owner has the exclusive right to reproduce and publish its copyright-protected work in material form and to communicate the work to the public.1 A person who reproduces, publishes or communicates to the public a copyright-protected work, or authorises any of those acts, without the permission of the copyright owner is guilty of copyright infringement.2
The specific grounds upon which Telstra based its allegation of copyright infringement in the AFL case are not made clear by the Federal Court order. News Ltd did not directly host the AFL match footage but included hyperlinks to the footage hosted on a 3rd party website. Accordingly, the footage was not reproduced on any of News Ltd's websites but only on the website linked to those sites. It is arguable that the provision of hyperlinks to infringing material hosted on a 3rd party website amounts to authorisation of copyright infringement on the basis that the hyperlinks directly induce the reproduction of the infringing material on the 3rd party website. The Federal Court order is not determinative of whether News Ltd authorised copyright infringement, although this can be assumed to be the basis of Telstra's claim.
The NRL and AFL cases also involve the exceptions to copyright infringement contained in the fair dealing provisions of the Copyright Act 1968. Generally, a fair dealing with a work for the purpose of research, study, criticism, review, parody, satire or reporting news does not breach copyright in the work.3
Whether or not a reproduction of a copyright-protected work for one of the specified purposes amounts to fair use will depend on the circumstances of each case, including a consideration of the nature of the protected work, the proportion of the work reproduced, the quality of the reproduction and the affect the reproduction has on the value of the work.
In the NRL case, the Federal Court noted that use of the NRL footage by PMG and NDM might be considered fair use for the purpose of reporting news. However, the court was also concerned that the amount of footage reproduced may have exceeded the amount reasonably necessary to report the news. In any case, web hosts who publish material online for any of the above purposes should be aware of the protection available under the fair use provisions of the Copyright Act 1968.
The AFL and NRL cases raise a number of interesting issues for website hosts and other publishers wishing to publish works created by 3rd parties. Website hosts should consider the risks associated with hyperlinking to 3rd party material. To avoid copyright infringement, publishers in all media should also seek permission from the copyright owner before reproducing their work, subject to exceptions for fair use.
In the case of reproductions of material (including hyperlinks) for purposes contemplated by the fair use provisions of the Copyright Act 1968, publishers must still be careful not to reproduce or link to portions of copyright-protected works that far exceed the amount reasonably required to serve the relevant purpose. Unfortunately, neither of the AFL or NRL cases clarifies when a publisher oversteps the mark.
Footnotes
1 Section 31 of the Copyright Act 1968 (Cth). See s86 of the Copyright Act 1968 (Cth) in relation to cinematograph films.
2 Section 36(1) of the Copyright Act 1968 (Cth). See s101 of the Copyright Act 1968 (Cth) in relation to infringement of copyright in subject matter other than works (including cinematograph films).
3 See ss 40, 41, 41A, 42, 103A, 103AA, 103B and 103C of the Copyright Act 1968 (Cth).
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