Copyright and the Internet – busting some myths

Copyright and the Internet – busting some myths

Separating Fact from Fiction in Online Copyright Protection

In cyberspace, once your illustrations, photographs, articles or designs are posted online you lose a certain degree of control over how they’re used, shared, and reproduced. The internet has made copying easier than ever before—a simple right-click and save, a screenshot, or a quick share button can duplicate your work instantly and distribute it to millions of people across the globe. As a lawyer advising clients in the creative industries, I see the same copyright misconceptions arise again and again, and these misunderstandings can have serious commercial and legal consequences.

People ask about the ten per cent rule and whether copying just a small portion of someone else’s work is legally safe. They wonder whether posting a copy of their drawing online themselves provides some form of automatic protection, or whether adding a watermark or the © symbol makes their copyright stronger. Misconceptions about whether you can register copyright in Australia are also rife, with many people believing there’s a formal registration system similar to trade marks when in reality no such system exists. The other common mistake is assuming that just because you paid for something—whether it’s a logo design, website graphics, or professional photographs—you automatically own the copyright in it, which in reality is often not the case unless the contract specifically assigns those rights to you.

This article explores these persistent myths and explains what Australian copyright law actually says under the Copyright Act 1968 (Cth). Understanding these principles is critical for anyone creating, commissioning, or using digital content, whether you’re a graphic designer protecting your portfolio, a business owner publishing marketing materials, or a content creator navigating social media platforms.

The stakes are high: copyright infringement can result in legal proceedings, damages awards, injunctions preventing further use of your content, and reputational damage that can be difficult to repair. But equally important is understanding what rights you actually have, so you don’t overclaim or threaten others based on myths rather than legal reality.

The ten per cent rule myth

One of the most persistent copyright myths is the so-called “ten per cent rule”—the mistaken belief that you can copy up to ten per cent of someone else’s copyrighted work without infringing copyright. This myth appears in various forms: some people believe it’s ten per cent of the length of a book, others think it’s ten per cent of a song’s duration, and still others apply it to copying portions of images or designs.

The truth is that there is no ten per cent rule in Australian copyright law, and there never has been. The Copyright Act 1968 (Cth) does not contain any percentage-based safe harbour for copying someone else’s work. Instead, copyright infringement is determined by whether you have reproduced a “substantial part” of the work, and substantiality is assessed qualitatively, not quantitatively. This means the law looks at the importance or distinctiveness of what you’ve copied, not just how much of it you’ve taken.

The test for substantial part was established in cases like EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd, the famous “Kookaburra sits in the old gum tree” case where the flute riff in Men at Work’s “Down Under” was found to reproduce a substantial part of the children’s song even though it was only a small portion of the overall composition. The court found that even a short musical phrase could be substantial if it was distinctive and recognizable. Similarly, in IceTV Pty Ltd v Nine Network Australia Pty Ltd, the High Court confirmed that substantiality depends on the quality and importance of what is taken, not merely the quantity. You could copy one sentence from a book and infringe copyright if that sentence is particularly creative, distinctive, or central to the work. Conversely, you might copy several paragraphs of purely factual information and not infringe if those paragraphs lack originality or creative expression.

This has significant implications for digital content creators. You cannot safely copy ten per cent of someone’s illustration, photograph, article, or design and assume you’re protected. If you copy the most distinctive or creative elements—even if they represent a small portion of the whole—you may well be infringing copyright. The same principle applies to using excerpts from blog posts, portions of infographics, or samples from videos. The question is always whether what you’ve taken represents a substantial part based on its quality and importance, not its length or size.

Does posting your work online protect it?

Another common misconception is that posting your work online—whether on your website, Instagram, or a portfolio platform—somehow provides additional legal protection or establishes your copyright in a stronger way than simply creating the work. The reality is that copyright protection in Australia is automatic. Under the Copyright Act, copyright exists in original creative works from the moment you create them and save them in some form. You don’t need to post it online, register it anywhere, add a copyright notice, or take any other action to get copyright protection. The moment you create an original illustration and save it to your computer, or write an original article and type it into a document, copyright exists.

Posting your work online does not make your copyright stronger, but it can serve other practical purposes. It creates a public record with a date stamp showing when you created the work, which can be useful evidence if you later need to prove you created something before someone else did. This can be important in disputes over who copied whom, or when multiple people claim to have created similar works independently. Posting online also makes it easier for others to find and credit you as the creator, which can help with your right to be attributed as the author. However, posting online also comes with risks. Once your work is publicly accessible, it becomes much easier for others to copy, download, and use it without permission. Many content creators have discovered their illustrations, photographs, or designs being used commercially without authorization after posting them on social media or personal websites.

The best protection comes not from posting online, but from keeping good records of your creative process. Save dated drafts, sketches, working files, and emails related to your work. If you’re commissioning work from others, make sure your contracts clearly specify who owns the copyright in the final deliverables. If you’re worried about establishing a clear date of creation, you can deposit copies of your work with a trusted third party or use timestamping services, but these are practical measures to create evidence, not legal requirements for copyright protection.

The copyright symbol myth

Many people believe that adding the © symbol (the copyright symbol) to their work is legally required to get copyright protection, or that it somehow makes their copyright stronger or more enforceable. This is another persistent myth. In Australia, the © symbol has no legal effect on whether copyright exists or how strong it is. As explained above, copyright arises automatically when you create an original work under the Copyright Act, and whether you include a copyright notice makes no difference. You could create an illustration, never add a © symbol to it, and still have full copyright protection. On the flip side, adding © to something that lacks originality or that you didn’t create yourself doesn’t magically give you copyright in it.

The copyright symbol does, however, serve useful practical purposes. It acts as a clear warning to others that you claim copyright in the work and that unauthorized use may result in legal action. This can discourage casual copying and makes it harder for people who copy your work to claim they didn’t realize it was protected. In legal proceedings, the absence of a copyright notice might be used by defendants to argue they reasonably believed the work was free to use, although this is rarely a complete defence. More importantly, in some countries outside Australia—particularly the United States before 1989—copyright notice was a formal legal requirement, and works published without proper notice could lose copyright protection. For works distributed internationally, using a copyright notice remains good practice.

A proper copyright notice typically includes the © symbol, the name of the copyright owner, and the year of first publication. For example: “© Sharon Givoni 2026” or “© Sharon Givoni Consulting 2026. All rights reserved.” The phrase “all rights reserved” is a historical leftover and is no longer legally necessary, but it reinforces the message that you’re asserting your rights. For digital content, many creators now add more detailed notices specifying what uses are and aren’t allowed, such as “© Sharon Givoni 2026. May not be reproduced without permission” or “© Sharon Givoni 2026. Available for use under Creative Commons licence.”

Does paying for it mean you own it?

This is perhaps the most commercially significant misconception, and it catches out businesses and individuals regularly. Many people assume that if they pay someone to create content for them—whether it’s a logo, website, photographs, written content, or software—they automatically own the copyright in the finished work. This assumption is wrong, and it has led to countless disputes when businesses discover years later that they don’t actually own the rights to use their own logo, website images, or marketing materials. Under Australian copyright law, the general rule is that the creator of the work owns the copyright, even if someone else commissioned and paid for it. This is set out in the Copyright Act.

There are important exceptions to this general rule. If the work was created by an employee as part of their job, the employer owns the copyright. So if you employ an in-house graphic designer and they create a logo as part of their job, you own the copyright in that logo. However, if you engage an independent contractor—a freelance designer, photographer, or writer—the contractor owns the copyright unless the contract specifically transfers it to you or was commissioned for a specific purpose that falls within narrow exceptions. There is a special rule that commissioned photographs and portraits belong to the person who commissioned them, but this exception doesn’t extend to other types of creative works like logos or illustrations.

The practical implication is clear: if you’re commissioning creative work, your contract must explicitly address copyright ownership. The contract should either assign the copyright to you (meaning the creator transfers full ownership to you) or grant you a licence to use the work for your intended purposes. An assignment clause might read: “The designer assigns all copyright and other intellectual property rights in the deliverables to the client, effective upon full payment of the fees.” A licence clause might read: “The designer grants the client a perpetual, worldwide, royalty-free licence to use the deliverables for [specified purposes].” Without clear contractual provisions, you might pay thousands of dollars for a logo only to discover that the designer still owns the copyright and could potentially prevent you from using it, licence it to competitors, or demand additional fees for uses you hadn’t anticipated.

This issue has become more complex in the digital age with the rise of stock photography sites, template marketplaces, and AI-generated content. When you purchase a stock photograph or website template, you’re typically buying a licence to use it, not copyright ownership, and the licence terms will specify what you can and can’t do with it. With AI-generated content, the question of who owns copyright is still evolving—if you pay for an AI tool to generate an image or text, do you own it, does the AI company own it, or does nobody own it because it lacks human authorship? Australian courts have not yet definitively answered these questions, but the safest approach is to ensure your agreements with creators, contractors, and service providers clearly specify who owns what rights in the output.

Moral rights in the digital age

Beyond economic copyright ownership, Australian law also recognizes moral rights under the Copyright Act, introduced in 2000 to comply with international treaty obligations. Moral rights are personal rights that remain with the creator even if they sell or transfer the copyright to someone else, and they cannot be bought, sold, or transferred. The three moral rights are the right of attribution (to be named as the creator), the right against false attribution (not to be wrongly named as the creator of someone else’s work), and the right of integrity (to prevent your work from being treated in a way that damages your honour or reputation).

These rights have particular significance for digital content. If you commission a photographer to create images for your website and the photographer transfers copyright to you, they still retain the moral right to be named as the photographer. If you crop out their watermark, remove their name from the image information, or publish the images without credit, you may be infringing their moral right of attribution. Similarly, if you heavily edit, filter, or manipulate the images in ways the photographer finds objectionable, you may be infringing their moral right of integrity. The Federal Court’s 2026 decision in McCallum v Projector Films has made it clear that blanket moral rights waivers—contract clauses that attempt to have creators give up all moral rights in advance—are not enforceable. Any consent to acts that would otherwise infringe moral rights must be specific, informed, and directed to particular conduct.

For businesses commissioning digital content, this means you need to address moral rights specifically in your contracts. You cannot simply include a clause saying “the creator waives all moral rights.” Instead, you need to specify what you intend to do with the work and obtain specific consent for acts that might otherwise infringe moral rights. For example: “The photographer consents to the client using the photographs on digital platforms without attribution, and consents to reasonable cropping and colour correction for digital display purposes.” This approach respects the creator’s moral rights while giving you the flexibility you need to use the content commercially.

Conclusion

Copyright law in the digital age is more important than ever, but it’s also more misunderstood than ever. The myths explored in this article—the ten per cent rule, the belief that posting online protects your work, the copyright symbol misconception, the confusion about registration, and the assumption that payment equals ownership—all create legal and commercial risks for creators and businesses alike. The reality is simpler and more complex than the myths suggest. Copyright arises automatically, protects original expression, and requires no formalities. But understanding who owns what rights, how to clear permissions, and how to structure contracts requires careful attention to the Copyright Act 1968 (Cth) and how courts have interpreted it. At Sharon Givoni Consulting, the focus is on turning Legal Ease, not Legalese®—practical, commercial advice that helps creative businesses understand their rights, protect their work, and avoid expensive disputes in an increasingly digital world.

Take Away Tips

The ten per cent rule doesn’t exist in Australian copyright law. Copying even a small portion can infringe if it’s a distinctive or important part.

Copyright protection is automatic from the moment you create an original work. Posting online doesn’t strengthen it, but can provide dated evidence.

The © symbol isn’t legally required and doesn’t affect whether copyright exists, but it warns others and can discourage copying.

There is no copyright registration system in Australia. Copyright arises automatically and can’t be registered.

Paying for creative work doesn’t mean you own the copyright. The creator owns it unless transferred to you by contract or created by your employee.

Moral rights stay with the creator even if copyright is transferred, and blanket waivers don’t work after the 2026 McCallum decision.

Contracts must explicitly state who owns copyright and address moral rights to avoid disputes.

Keep records of your creative process—dated drafts, files, and emails—to prove creation and ownership if needed.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.