It seems that there are countless social media platforms: Facebook, Instagram, Pinterest, Twitter, Snapchat, YouTube and LinkedIn, just to name a few.

One common feature of all of these platforms is that they all enable online sharing – the sharing of thoughts, ideas, photographs, videos and handiworks. So what is intellectual property (IP) law and just how do we protect our ideas or expressions of ideas when we engage in online sharing? How do our IP laws work and what IP rights are we giving up when we use these social media platforms?

Copyright in Australia

In Australia, the expression of certain types of works will be automatically protected by copyright without the need for any formal registration. These works include literary, dramatic, musical or artistic works.   Notably, a photograph is protected by copyright as a product of the art of photography, regardless of whether there is any real skill or artistic ability exercised by the person who takes the photograph. In simplest terms, this basically means that every photograph that is taken is automatically protected by copyright, and the author of that photograph has certain legal rights in relation to its use.

So what rights do we give up when sharing a photo via social media?

The answer depends on the terms of use that a user agrees to when he or she signs up to the relevant platform. However, given the sheer number of social media platforms and their prolific use, it is possible that many users are inadvertently altering or disposing of their legal rights. Also, when clicking ‘I agree’ to use the platform, how many of us actually read the terms and conditions, so we really know what we are agreeing to?

What else are we giving away?

In addition to the possible inadvertent surrender of one’s copyright, the use of social media also allows for thoughts, ideas and expressions to be disseminated across the globe, and there are obvious issues when it comes to the protection and enforceability of one’s legal rights when a breach has occurred in another jurisdiction. If, for example, a person writes an article and shares it on LinkedIn, and that article is shared with hundreds of online users, what rights would the author have if, say, a university student in another country plagiarised their article? How would the author go about enforcing those rights? Would it be worth the time and effort involved in navigating the IP laws and legal systems of the other country?

These are just two examples of the difficulties that exist in relation to intellectual property and social media. The issues become more significant when a person has intended to earn a livelihood from their works – for example, unsigned musical artists and amateur filmmakers.

At the very least, it seems that the existence of issues such as these highlights the need for more education in the IP space. We should all know what rights we have in our work so we can decide what to do with them.

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In August this year, there was a news report relating to the 20-year suspension of a Queensland Australian Rules Football player who kicked a fellow player in the head during a football match. It appeared from the video footage of the match that the offending player delivered the kick intentionally to a player who had already been knocked to the ground. The incident squarely gives rise to the issue of torts in sport.

Trespass Torts

The ancient tort of battery is a form of legally actionable trespass that exists where a person directly and either intentionally or negligently causes some physical contact with another person, to which that other person has not consented. Of course, the act of deliberately kicking another player during a football match satisfies the first limb of the tort – namely, directly and intentionally coming into physical contact with another person. The relevant question, therefore, in determining whether a tort has been committed centres around the issue of consent.

Consent and the ‘Rules of the Game’

The courts have recognised that in certain circumstances a person will have given implied consent to certain types of physical contact – for example, inevitable jostling at a train station or on a busy street, or a hand seized in friendship. This principle of implied consent has been extrapolated to contact that occurs between players during sport. In the case of McNamara v Duncan (1971) 26 ALR 584, the plaintiff successfully sued the defendant for injuries he sustained when he was struck by the defendant while playing Australian Rules Football. As to the issue of consent, the court noted that forcible bodily contact was part of the game. However, it ultimately held that the contact between the defendant and the plaintiff was contrary to the rules of the game and was therefore beyond the scope of the plaintiff’s implied consent.

In the light of this interpretation of the law, it is perhaps surprising how few torts cases relating to sporting injuries have been pursued in the courts. However, the recent incident in Queensland serves as a timely reminder as to the limited scope of consent that will be implied by the courts in relation to contact occurring between players in the course of a sporting match. Playing and contact within the rules will be deemed to be consented to; playing foul of the rules may see you playing foul of the law.

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Learn more about torts law and become legally literate by joining Monash University’s Law for Non-Lawyers: Introduction to law for an accessible introduction to the common law system.

This free to join online course is designed for anyone with an interest in law. Whether out of professional or personal interest in the legal environment in which you live, work and play, this course is for you.

Join the course, Law for Non-Lawyers, today.

Learn more about Monash’s suite of online courses developed with education partner FutureLearn.

References

• Ipswich Eagles Aussie rules player banned from playing for 20 years, Erin Smith and Chris Clarke, Quest Newspapers, 24 August 2017
• Collins v Wilcock [1984] 1 WLR 1172 at 1177-1178 at cited and applied in Rixon v Star City Pty Ltd [2001] NSWCA 265 at [53].