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Many websites use content, like pictures and logos, that other businesses own. This may be because they: 

  • run a price comparison website;
  • run a product review website; or
  • simply like the content and wish to share it. 

If you operate a website and want to use content from other business’ sites, you should carefully consider whether you need permission to do so. This article will explain how you can use content which belongs to other companies without breaching their intellectual property (IP) rights.

Copyright

Copyright protects the original expression of facts or ideas. This means that original works that are on somebody else’s website are protected by copyright. This will include:

  • photographs; 
  • graphics; and 
  • text describing products.

If you copy this content without permission, you are likely to have infringed the other business’ copyright. If you want to use content from another company, you should reach out to them and get their permission, in writing. 

Fair Dealing Exception

You may be able to use someone else’s content without their permission if it falls under the ‘fair dealing exception’. Under this exception, you can use copyrighted material if you are using it for: 

  • research or study;
  • criticism or review; 
  • parody or satire; or
  • reporting the news.

For example, if you run a product review website, you can use copyright protected content from other businesses without permission to critique or review it.

However, your use of the work must be “fair”, and you must also acknowledge the author and source of the copyrighted work.

Trade Marks

A trade mark is any sign that a business uses to distinguish its products or services from those of other businesses. A ‘sign’ in this context could be a: 

  • name; 
  • slogan; 
  • logo; 
  • image; or
  • combination of these things.

For example, both the name ‘Nike’ and the Nike tick are trade marks. Many businesses will register their trade marks so that no other business can use them. 

You will be infringing the trade mark of another business if:

  • your trade mark is identical or deceptively similar to the other business’; and
  • you and the other business are within the same industry.

For example, if you also called your business Nike and labelled it as such on your website, you may be infringing Nike’s trade marks.

Website Terms of Use

A business’ website terms of use set out the rules for people using their website, including: 

  • how users can use the website;
  • what conduct is prohibited; and 
  • a disclaimer to limit their legal responsibility for information on the website. 

One of the most critical clauses in website terms of use relates to how users can use their content, including: 

  • photos; 
  • information; 
  • descriptions; and 
  • multimedia.

Here, users are generally prohibited from copying the content from that business’ website without their consent. Therefore, it is best practice to refrain from copying content from a business’ website if you were to be breaching their website terms of use.

Australian Consumer Law

The Australian Consumer Law (ACL) prohibits businesses from engaging in misleading and deceptive conduct. Misleading conduct and deceptive conduct have two separate meanings:

Misleading Leading another party into an error.
Deceptive Deliberately leading another party into an error.

The main difference is whether you mislead someone, which could happen by mistake, or if you deliberately deceive someone.

For example, if you are using content from other websites to compare different products, you should focus on your responsibility to avoid misleading users by:

  • ensuring you do not display incorrect information other business’ products, including the price and general characteristics; and
  • do not misrepresent yourself as being associated with another business if this is not the case.

Tips When Using Content From Other Websites

1. Ask For Permission

Ask for permission to use content that you do not have the rights to use. This is important if you are using another business’ content in a way that promotes their business, as they may be willing to permit you to use their content. Often, this will be put into writing in a content licensing agreement.

2. Be Accurate

To prevent misleading consumers, you should accurately describe the nature of your relationship (or lack thereof) with any other business. You can outline this in your terms and conditions and any other correspondence with your website users.

3. Policies

Formulate policies to make sure any information you publish about another business or their products is accurate. If you are publishing information on your website about other business’s products, you should also implement policies and procedures to ensure users are aware of the origin of the information.

Key Takeaways

When a business creates content and puts it on their website, they will likely automatically become the owners of that content. If you use that content, you need to be very careful that you do not infringe any of the other business’ IP rights. Simply taking content off another website may mean you breach the copyright or trade mark rights of another business. If you want to use another business’ content, it is best to ask them for permission to use their content. If you have any questions about using content that was created by other businesses, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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