An interesting question from an CFS volunteer:

At the recent fires in South Australia CFS volunteers with Facebook accounts would have made many posts and commentary, pictures and even video of what was going on around them.

CFS have a policy in place for managing social media, which seems sensible and seeks to ensure that inappropriate material of any kind is not associated with CFS. So far so good. However it states in 3.5 of the policy that all images video or sketches made at incidents becomes the property of the CFS.

CFS also has an SOP of Photographic /Video recording of Incidents. A copy of this is attached.

During recent fire fighting activity, Volunteers were paged several times with messages saying “Be advised any vision taken by CFS Volunteers is NOT to be posted onto Social Media or provided to any Media outlet as per SOP 12.1 and 12.2”
(SOP 12.1 refers to providing information, pictures or footage to media outlets such as newspapers and TV stations).

My questions are;
1 Does CFS have the legal right to claim that all images and video made at an incident by volunteers are the property of the CFS?
2 Even if images and video are in fact owned by CFS, does this entitle CFS to prohibit uploading to Facebook or Twitter?

Your views on these two questions would be appreciated by a considerable number of fellow volunteers!

I have previously answered a similar question from a volunteer with NSW RFS – see ‘Taking photos whilst on duty with the NSW RFS – amended’ (October 26, 2013) but there are differences and further information has come to hand, but readers should still consider that post as part of this answer.

The first issue is to identify who owns the photo. The Country Fire Service’s Social Media Policy says (December 2012, at [3.5]) says “All images/footage taken by staff or volunteers attending a CFS incident or event in a CFS capacity becomes the property of CFS regardless of whose equipment is used.”

Commonwealth law prevails over an inconsistent state law (Australian Constitution s 109).  The Social Media Policy does not even enjoy the status of a state law so it can not prevail over the provisions of the Copyright Act 1968 (Cth).

The Copyright Act 1968 (Cth) says that a person who creates a work, like a photo, owns it (s 35(1)). The exception to this rule is that if you produce the work as part of your employment, so if you were employed by the CFS as a photographer, then the employer owns the copyright in the photo (s 35(6)).

The Act also says that copyright in material that is created first published under the ‘direction or control’ of a State or the Commonwealth government belongs to that government (ss 176-178).   The CFS is part of the government of South Australia so the State of South Australia will own the copyright of photos created or published under its ‘direction or control’.   This will raise the question of what does ‘direction or control’ mean?

In Copyright Agency Limited v State of New South Wales [2007] FCAFC 80, Emmett J said (at [125]) that the provisions referring to ‘direction or control’:

… must involve the concept of the Crown bringing about the making of the work. It does not extend to the Crown laying down how a work is to be made, if a citizen chooses to make a work, without having any obligation to do so.

Finkelstein J said (at [186]):

… where the Crown has power to require a work to come into existence, the work is made under the “direction” of the Crown. If the Crown has dominion over the execution of the work then it is made under its “control”. The assumption that underlies each concept (direction and control) is the existence of a relationship between the Crown and the author that authorises the Crown to give the direction or exercise the control as the case may be. That authority may be found in statute, including regulations made under a statute, contract or elsewhere. But, whatever its source may be, the authority must exist.

If a fire fighter is asked to take a photo of something for CFS use, for example it is observed that there is something that may help identify the cause of the fire or be useful for training and a senior officer, seeing that a firefighter has a camera says ‘take a photo of that, we’ll have a look at that in more detail later’, that would be taking the photo at the ‘direction’ of the CFS and therefore of the State.  Equally a person who is the volunteer media officer or photographer is taking the photo for the CFS.

Control is more problematic.  Members place themselves under the control of the CFS and are acting on their direction as they respond to a fire, but if they stop and take a photo along the way are they taking the photo under the ‘control’ of the CFS?  I would think not.  The CFS is not given instructions on how photographs are to be taken. The CFS gives instructions on how to fight fires, use PPE etc but not the art of photography, and it is not the case that the various SOPs or Social Media Policy say that photos are not to be taken.

The Service’s Standard Operating Procedure, SOP 12.2 – Photographic/Video Recording of Incidents, says:

SACFS Personnel may take photographs or video at an Incident for the following:

– SACFS Incident and Investigation Reports;

– SACFS Brigade, Group and Regional Training Purposes;

– SAPOL, including Major Crash Investigation Section;

– SAMFS Fire Cause Investigation Section;

– SACFS Corporate Communications Unit for training purposes;

– SACFS Promotions Unit for its website.

Taking a photo with the intention of using it for those purposes may be taking a photo under the ‘direction or control’ of the CFS, but photos may also be taken for other purposes.    People who volunteer to act as fire fighters may well want to take photos of the scene, and their colleagues, and the fire truck, to record their memories and that they were there.  To suggest that the CFS owns the photos on their phone seems a step too far.   If they did they could insist that you hand over the photos and the CFS could use them as they see fit (subject to the obligation to acknowledge you as the photographer (Copyright Act 1968 (Cth) Part IX, Moral Rights).   One can see the CFS’ concern – they don’t want those photos circulated on the web where it may cause any number of problems – but their legitimate desire to limit the use of the photos does not convert to ownership.

So, the short, first part of the answer is if you took the photo, and it was not done as part of your employment, as part of your volunteer role (eg as a volunteer photographer) or with the intention of using it for one of the purposes listed in SOP 12.2, you own the photo.

That is not the end of the matter.  The next thing to consider is does the CFS have a photo policy and my correspondent has identified that they do: SOP 12.2 – Photographic/Video Recording of Incidents and SOP 12.1 – Engaging the Media.  SOP 12.1 says ‘Photographic or videotape material will not be released directly to the media, any other website or electronic medium’.  SOP 12.2 says ‘Photographs or video material taken by SACFS Personnel at an Incident will not be used on any other website or any other electronic medium’.

The CFS may not own the photo but members of the CFS agree to be bound by its rules and to be part of the organisation.  If taking, or more importantly, using the photo is contrary to service policy, the member could expect to face disciplinary action which could, in extreme cases, include exclusion from the service (Fire and Emergency Services Act 2005 (SA) s 70 and Fire and Emergency Services Regulations 2005 (SA) reg 22).

Conclusion

The questions I was asked were:

  1. Does CFS have the legal right to claim that all images and video made at an incident by volunteers are the property of the CFS? and
  2. Even if images and video are in fact owned by CFS, does this entitle CFS to prohibit uploading to Facebook or Twitter?

My answers are:

  1. If the photo is made by an employee of the CFS as part of their duties, or by a volunteer under the ‘direction or control’ of the CFS, then yes; but if the photo is taken by a member for their personal use, then ‘no’.
  2. If the images are owned by the CFS then definitely ‘yes’ but in my view the answer is ‘yes’ even if they are not owned by the CFS. More importantly the CFS may not be able to stop the member posting the photo but they could take disciplinary action against the member.

For further information see: http://www.copyright.org.au/find-an-answer/browse-by-what-you-do/photographers/