SEOSEM in OZ

Copyright Law in Australia - SEO Alternatives

SEO is website design for a specific goal: to help the website accomplish business goals.
One of those business goals is to remain within the law.

As Kim Weatherall notes (from "Cooper - how linking in Australia can land you in hot legal water":

Here's one favourite quote that captures some of the flavour of the Branson judgment:

'Mr Cooper placed considerable weight on a suggested analogy between his website and Google. Two things may be said in this regard. First, Mr Cooper's assumption that Google's activities in Australia do not result in infringements of the Act is untested.'

This quote is striking. Not because it is inaccurate. On its terms, it is obviously perfectly true. No one has sued Google here yet. What is striking is that a statement as potentially momentous as this: that the activity of running a search engine - one of the fundamental activities that makes the 'Internet work' these days could well be infringement, we don't know - can be said without the merest bat of a judicial eyelash.

Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to 'work' in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work?  Did all this debate completely pass the members of the court by?

Leaving aside that Australian Copyright Law has created broad liability for a moment, there are two key legal concepts that may offer some design options, at least in the interim: Authorization and Relationship. I'm going to lean on wiser and more learned shoulders here a little. Further in the same article by Ms Weatherall:

Now, in broad terms, the law is:

1. a person can be liable both for infringing copyright, and for authorising infringement (ss36, 101)


2. 'authorise' has a meaning developed in the caselaw - basically, 'sanction, coutenance or approve'.  The classic old case on this was Moorhouse, in which a university was held liable because it provided coin-operated photocopiers right beside the books with no control and no steps to limit infringement;


3. according to legislation introduced in 2000 and designed, allegedly, to codify common law and provide 'certainty', in assessing authorisation, courts must take into account three things:

• the extent (if any) of the person’s power to prevent the doing of the act concerned
  

• the nature of any relationship existing between the person and the infringer;


• whether the person took any other reasonable steps to prevent or avoid the infringement.

Any website or webpage can authorize infringement by linking. If the Cooper judgment is allowed to stand, that is established. But there are design elements which can be employed to define the nature of the relationship between the visitor to a website and website, and to limit the liability of authorization.
What if Cooper had popped up a box on every link that said:

Warning! This link may lead to copyright protected material.
Please contact the owner of the website to ensure your activities do not infringe on Intellectual Property rights.

The Justices considered the name of his website and the stated purpose of his search engine in determining the relationship and authorization. Such a warning may not have saved Mr Cooper.
However, it might offer some options to web designers in Australia to protect themselves and their clients.

The Day Australia went Black

One day, Australia looked like just another part of the World Wide Web. Australians searching for products and services, or researching for school, could see any of the 70 million websites and hundreds of millions of webpages.
The next day, most searches on Google, Yahoo! and MSN returned nothing. Not a few pages, just ...Nothing.
As of January 1st, 2007, Australia became a blank hole in the Internet.

Slowly over the next few months, a few webpages appeared in the searches as webmasters, ISPs, and IT departments scrambled to craft permission statements acceptable to the new copyright laws. Each version had to be vetted with the Australian Attorney-General as they arrived.
Some sites and webpages appeared, then disappeared, as the wording of permission statements was fine tuned to comply with the new copyright laws.
Some websites were removed because the pages they submitted with permission statements contained links which were infringements under the new law. Google and Yahoo! wrote to the AG Philip Ruddock to ask for a grace period. There had been no reply for months. Finally, a reply from Philip Ruddock stated that this was a matter already ruled upon by the courts, and his office had to respect the independence of the magistracy.
The Attorney-General's reply further stated that the new copyright laws were due for a review in July 2008. Google, Yahoo! and other search engines were free to make submissions towards that review. Until then, the rulings of the High Court of Australia would stand.

The Attorney-General stated that a sample permission statement would be posted on the Government website for all to use. But as of that time, the Attorney-General nor any of the government offices, had given Google or Yahoo! permission to index their webpages. No one could access the sample permission statements.
In the strict interpretation of the High Court ruling, news media around Australia came to realize that to publish links in print was the same as to publish on the Net. The link to the sample permission statement could not be published in the newspapers.

Whole sections of newspapers disappeared. Editors and writers were fired, and new editors and writers who did not rely on the Net were hired.
Magazines were removed en masse from newsstands around the country. Any magazine with printed links, and especially those which came with game CDs or tutorials, were removed. The newsagents' stands contained only sparse newspapers and a few children's magazines.
Articles were published warning the public that to include links without permission in emails was to risk copyright infringement. The same articles warned that links included in SMS messages was being considered before the courts.

How had this been allowed to happen?
The answer that came back was breathtaking in its simplicity. It was broadcast on all the television news programs. A smiling official from the Attorney-General's office was seen saying: "It all came at a bad time. No one works on anything serious over the holidays."
Every Australian knew it was true. From mid-December til late January each year, Australia takes a holiday.
(This is, of course, a parody, and therefore protected under Australian copyright law. The sad part is, it could easily be true very soon. -PD)