Today’s correspondent has a
… question is about control of intellectual property and copyright while persons are deployed as volunteers by an emergency service.
Who would have control of photographs or videos taken by a volunteer member of an emergency service while deployed and who takes photos or videos of incidents not related to the emergency service deployment. As well, what about the situation when photos and videos are taken as part of the deployed role.
Does the fact of volunteering create a contractual arrangement and lead to a valuable consideration situation where the intellectual property and copyright rights are a} passed to the organisation, b) share between the organisation and the originator of the material, or c) retained by the originator of the material.
I have addressed similar issues in earlier posts – see
- The use of photos taken at accident and emergency scenes (August 6, 2011);
- Taking photos whilst on duty with the NSW RFS – amended (October 26, 2013);
- Taking photos on the fireground in South Australia (January 9, 2015);
- Taking photos, recording sound (February 23, 2015);
- Photographing a rescue scene (November 11, 2016); and
- New CFA social media policy (July 10, 2018).
To recap on my thoughts, the Copyright Act 1968 (Cth) s 35(1) says “the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work …” so prima facie the person who takes a photo or video is the owner of the copyright in that work. That rule is subject to some exceptions. In particular where a photo is taken by a person as part of their employment and for the purposes of publication by the employer then the copyright is held by the employer (s 35(4)). Further if a photograph is taken as part of an agreement to take the photo – for example a studio photograph for a family portrait or for someone to add to their portfolio – then the photograph is owned by the client, not the photograph (s 35(5)). Finally, where any work is made pursuant to one’s employment then the employer owns the copyright.
The first thing to note therefore is that a ‘volunteer member of an emergency service’ is not an employee so none of those provisions will apply. On the face of it, therefore, where a volunteer member of an emergency service takes a photo or records a video then they own the copyright.
Copyright may be assigned (in effect transferred or sold) to others (s 196). Further a person may assign future copyright, that is they can enter an agreement so that the copyright is transferred when they produce the work – the photo, the book etc, even though at the time of the agreement, no such work exists (s 197). These agreements must be in writing (s 196(4) and 197(1)).
Finally, where a work is produced ‘by, or under the direction or control of … a State’ then the copyright belongs to the State (s 176).
We can then look to specific policies. Let us take, as an example, the NSW Rural Fire Service Service Standard 1.1.9 Intellectual Property (31 March 2009). It says:
2.9 Any IP made or created by an RFS volunteer in carrying out their role or service as an RFS volunteer will vest upon its creation in the State.
The RFS cannot rewrite the law. Even if the RFS Service Standard had the force of law it is a state law and it must not be inconsistent with a valid Commonwealth law (Australian Constitution, s 109). The Copyright Act is a Commonwealth law so it would override an inconsistent state law. Prima facie, then, [2.9] seems to be ‘overreach’ – but it has to be read in context. First the context includes [2.10] which says:
2.10 The RFS must ensure that any agreement entered into with an RFS volunteer includes a specific provision providing that any IP or IP rights, which are created as a result of the agreement vest upon their creation in the State.
Every membership is in effect an agreement – a person applies to be a member of the RFS, the application is accepted (or not) and if it is accepted the member agrees to be and is bound by the relevant procedures, rules and service standards etc. I cannot see the terms of an application for membership but it may (and [2.10] says it ‘must’) contain a clause assigning copyright.
Further the Rural Fire Service (like most, if not all Australian fire services) is part of the state. If a member takes photos or records videos whilst acting under the direction of the service, then by virtue of s 176 the copyright will belong to the state.
That then begs the question of when and how is the photo being taken. As I’ve noted in earlier posts if the volunteer is a volunteer media officer, taking photos for publication by their agency then I think there is little problem in saying the agency is the owner of the copyright. That is the terms of the agreement between the agency and the member and they are taking the photos subject to the direction of the service.
I think it is a very different issue if the photo is taken by a member whilst at the staging area where they take a photo of the crew they’ve been working with for the purposes of putting it in their photo album (physical or electronic) as a keepsake of the deployment. I also cannot see how the service could own the copyright of photos taken of the scenery in downtime ie photos taken ‘while deployed … [but] not related to the emergency service deployment’. It’s different if the ‘photos and videos are taken as part of the deployed role’ and in particular if the specific role is to take photos.
To turn to my correspondent’s questions, it would depend on all the circumstances. First of all it would depend on the terms of any membership application and whether it contained an express provision assigning copyright in any works produced. Second and I think this is more likely, it would depend on whether the works were produced whilst the member was acting under the ‘direction’ or ‘control’ of the state. Even where the production of the photo is not part of the task if a member is deployed to say fight a fire they are under the direction of control of the state even if they stop to take a photo of the fireground.
Finally there are other policies relating to discipline and conflict of interest that may be breached by taking photos particularly where access is limited so the person can only get the photo because they are a member of the emergency services, where there is a conflict of interest or where taking photos of crime or rescue scenes. All those issues are discussed in the earlier posts referred to above.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.