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In the age of online marketplaces and interactive app services, your customers will often upload content to your platform that infringes upon someone’s copyright. It’s crucial that, as a business owner, you’re aware of your obligations when it comes to copyrighted content. Even if your business didn’t post the content, a court could rule that your business itself has infringed copyright. In this situation, you could have to pay significant compensation for your users’ copyright infringement.

In Australia, unlike some other countries, there is very little protection for platforms and marketplaces like Facebook, Instagram and eBay. Accordingly, you need to be aware of the risks and how best to avoid an infringement claim. This article explains how copyright works and why your business needs to minimise risk.

How Does Copyright work?

Copyright protects the creative expression of ideas in:

  • writing;
  • music;
  • visual images;
  • moving images; and
  • computer programs.

It can also protect other assets like databases and broadcasts. Copyright provides the owner with the exclusive rights to use, copy, license, perform and modify the creative work.

The copyright owner (usually the author or creator) has the exclusive right to:

  • reproduce the work in a material form;
  • publish the work; or
  • communicate the work to the public, for example by posting that work on the internet.

Unless a person has a licence or the copyright owner’s consent to post a particular image or other form of creative content on the internet, they will be infringing copyright. This is the case even if the image is widely available on the internet and or the post links back to the original source.

If you run a marketplace, app or other platform where you host content and users of your platform upload images, videos or literary material, the users will be committing copyright infringement if they don’t have the copyright owner’s permission.

Importantly, even if the content is posted on your platform by a third party user, you may also be liable for copyright infringement. This can be direct liability as the publisher of the content or indirect liability as a result of expressly or impliedly authorising the third party user to upload the content to your platform.

The Pokémon and Redbubble Case

The recent case of Pokémon v Redbubble is a timely warning to all businesses hosting content on their site. The court decided that Redbubble, an online marketplace, infringed copyright because its users uploaded and sold infringing artworks on its site. Customers could purchase these images and print them on items such as t-shirts and bags.

Redbubble was liable for copyright infringement even though it didn’t create or post the artworks or offer them for sale. They also had a notice and takedown system in place, whereby they would remove infringing content from their site when made aware of it. Users also had to agree to a comprehensive intellectual property (IP) policy and agree they would not upload infringing content. Even still, this was not enough to protect Redbubble from liability.

However, these measures meant that Redbubble’s infringement was not considered “flagrant” and it did not have to pay additional compensation. For that reason, you should include an IP policy and takedown process to limit your liability. However, this won’t be sufficient to protect you entirely. Many of your users won’t get permission from the copyright owner. Therefore, a lot of infringing content will likely appear on your platform.  

The only way to effectively eliminate the risk of being held liable for copyright infringement is to ensure that no infringing content is uploaded to your platform. However, this is very difficult to control and police in practice.

Key Takeaways

If you’re an online platform that allows third parties to post content, you must be aware of the copyright risks that go hand in hand with this business model. Unfortunately, the Redbubble case has made it clear that courts aren’t sympathetic with businesses in this respect. Many people do not understand the gravity of taking images from the internet and publishing them without a licence. When you are providing the platform for this, you’re exposing yourself to the risk of committing copyright infringement.

To best protect your business, you should still ensure that your user agreement forbids the use of infringing or other unlawful content and that you have an adequate takedown process in place. If you need assistance minimising your business’ risk of copyright infringement, get in touch with LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.


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