The Law Handbook 2024

Chapter 7.5: The internet and the law 737 you do not own the copyright for, and do not get permission to use. If you download podcasts provided by others that infringe copyright, you also infringe copyright. Amateur podcasts that contain commercial audio content are more likely to infringe copyright than podcasts from well-known broadcasters (e.g. the ABC). It can be difficult to determine whether a podcast infringes copyright. Webcasting Webcasting (also called online simulcasting) is distributing media content (e.g. a video of an event) over the internet using streaming technology to distribute a single content source to many simultaneous listeners or viewers. A webcast may be distributed either live or on demand. Webcasting differs from podcasting in that webcasting refers to live streaming while podcasting refers to media files placed on the internet. Case examples Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331; [2013] FCAFC 11 The full bench of the Federal Court confirmed that radio program webcasts are not ‘broadcasts’. The court stated at 347 that: a broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform. Thus, the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet. Radio broadcasters need to obtain separate licences from – and pay additional royalties to – copyright owners, to transmit radio programs over the internet. National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59 The full bench of the Federal Court found in favour of the Australian Football League (AFL), the National Rugby League partnership (NRL) and Telstra (together, the ‘rights holders’) in the Optus TV Now Service (‘the Service’) proceedings. The court held that it was Optus (or alternatively, Optus and the subscriber) that caused recordings of free-to-air television programs to be made via the Service, thereby infringing the copyright holders’ rights. The court found that Optus could not rely on the ‘private and domestic’ use exception under section 111 of the Copyright Act. Social media What about Facebook and X (formerly known as Twitter) posts, or images uploaded to Instagram or Pinterest? Anyone who posts on social media usually owns copyright of their own posts, provided the content satisfies originality requirements for copyright protection. However, a short post (e.g. ‘I like this restaurant’) is not likely to attract any copyright protection. If you operate a website, and someone else posts copyright-infringing material (e.g. someone else’s photo or music) to your site, you are likely to be liable for copyright infringement, even though you did not post the infringing material yourself. For this reason, most sites usually contain terms and conditions of use that require users to not infringe copyright. It is a good idea to respond quickly to complaints about infringing content on a website that you operate. The law treats social media posts like any other form of communication. Therefore, using social media can involve other legal considerations besides copyright, such as defamation. In short, the author of a social media post is responsible for its content, so it is important to consider whether a post infringes the legal rights of other people. Defamation issues What is defamation? ‘Defamation’ involves damaging the reputation of a person by publishing or communicating statements about that person that would potentially cause a third party to think less of that person. For more information about defamation, see Chapter 11.2: Defamation and your rights. Anything that is communicated in a public forum (e.g. a speech, newspaper article or website) has the potential to be defamatory. However, a publication does not need to be ‘public’ to be defamatory.