A recent episode of the ABC’s Media Watch highlighted the expanded use of watermarking in TV news video footage and news photos.
It highlighted ticker tape style watermarks on news video footage and multiple watermark labels on news photos.
News source logos have long appeared as watermarks in reports. The following Channel Nine video demonstrates the expanded use of watermarks as well as use of YouTube for public relations to shame Channel Seven.
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Copyright protection is important to all publishers, even if they are using a Creative Commons licence. Watermarking is a practical or technical way of creating a hindrance or obstacle against copiers.
Watermarking fills a need gap. News reporting is treated as an exceptional circumstance under Australia’s copyright law. The law assists copiers in that circumstance. For most people, Madeleine Pulver included, the recognition of this law arises when their social media photos are copied for news.
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Under the Copyright Act 1968 (Cth) the concept of “fair dealing” provides for free use of a copyright work in a restricted group of circumstances. The restricted group of circumstances are:
- Research and study
- Criticism or review
- Parody or satire
- Professional legal advice
- Reporting news.
Why is there a copyright fair dealing exception for reporting news? The rationale is that there is a public interest in reducing obstacles for publication of news reports.
If the exception was not there, users of news content would have to do what other copyright users have to do:
- apply for and obtain permission for use of a copyright work; and
- pay a fee if required by the copyright owner or its representative.
Consider fair dealing with news photos. In circumstances where the above fair dealing circumstances under the Act are triggered, they permit use of a photo, or a substantial part it, without permission, authorisation or payment of a fee. In those cases the use is not a breach of copyright.
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Going into detail, a photo for the purposes of the Act is known as an “artistic work”. Section 42 of the Act is the relevant fair dealing section of the Act for photos when used for the purpose of, or in association with, reporting news. The section provides a complete defence. It is headed “Fair Dealing for purpose of reporting news” and following is the relevant extract from that section:
“(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:
(a) it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; …”.
It follows that there is no infringement of copyright if a photo is reproduced in a newspaper, magazine, periodical, film or broadcast, and the use is for the purpose of, or is associated with, the reporting of news (provided sufficient acknowledgment of the work is made).
The use of the photo needs to have been used with a primary purpose to report or comment on news. News is not restricted to current events. It includes the reporting of recent events and situations, and information not previously known.
So we have a situation in which law permits copying in the specific circumstance of news reporting (subject to some requirements) and watermarking has become a common practice to create a practical obstacle for “exclusive” news.
We’ll end by going beyond legal protection mechanisms for videos and photos in traditional media. What’s the position for publishers online or in mobile apps? Online terms of service or terms of service for mobile apps are used to add a contract law layer onto the substrata of the copyright law layer to thereby add another means to create legal obstacles for copiers. The terms add a raft of obligations on site visitors or app users. Hence it is not legally possible to take content without reviewing site-specific legal terms.
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