Opinion

Facebook’s copyright struggles are a reflection of the internet’s wider legal problems

Copyright has never been a string in Facebook's bow, but it might not actually be the social media giant's fault, explains lawyers John Hannebery, Fiona Galbraith and Lachlan Sadler.

Facebook recently acquired tech start-up Source3, which creates software to detect online material that infringes intellectual property rights.

This is the latest in Facebook’s ongoing efforts to identify such material in the hope of encouraging users and corporate partners to share original content on the social network.

The acquisition is reflective of the ongoing challenges trademark and copyright owners face in enforcing their rights in a digital landscape that makes content sharing increasingly easy.

Currently, copyright owners may take action against copyright infringement on websites hosted in Australia by issuing a takedown notice to the Internet Service Provider who is hosting the site.

If the notice is valid, the ISP is required to block access to the infringing material. Where the website is hosted overseas, as is often the case, copyright owners can use a similar process (called the “DMCA” takedown notice procedure), which is essentially a formal request to remove the infringing content from the website.

The system can also be advantageous for site owners, as their compliance with the takedown notice procedure results in being granted immunity from liability.

If trademark or copyright infringement is occurring on social media platforms, those sites typically have their own “in house” online complaint avenues.

For rights holders, these procedures substantially lessen the financial cost of enforcing their copyright online, as issuing a takedown notice or filing an online complaint is a relatively simple and cheap process.

If only it were so simple

Unfortunately, these advantages can be achieved at the cost of oversight by legal professionals. Rights owners issuing takedown notices or online complaints might not have received legal advice, which can be problematic given the complexities that can arise in terms of who actually owns copyright and the potential defences available to those uploading otherwise infringing material.

These complexities are demonstrated by the infamous “monkey selfie” case, where British nature photographer David Slater photographer set up a camera to take “selfies” of wild animals who were coaxed into pressing the shutter button.

Copyright: this guy

Website owners refused to remove the pictures on the basis that the photographer did not own the copyright and, in developments that few thought would ever be necessary, the US Copyright Office declared that a photograph taken by a monkey was not copyrightable. The fight for the monkey’s rights continues in the US courts.

Given these complexities, it is worth noting that the purported rights owner might be liable for any damages resulting from an unjustified claim.

Where to from here?

Opportunities to promote businesses and personal reputation online continue to increase. Despite what can feel like a hostile online landscape to copyright owners, there are effective and modern methods in place to allow you to enforce your rights.

Given Facebook’s new tools against trademark and copyright infringement, companies and individuals should be diligent in checking that all material they post to social media does not infringe the copyright or trademark rights of others.

Be cautious both when sending and receiving takedown notices, as copyright ownership can be complex and taking inappropriate action may open you up to liability.

John Hannebery is a principal at Davies Collison Cave Law. Fiona Galbraith is a senior associate and Lachlan Sadler is graduate lawyer at the IP law firm.

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