Infringement of copyright

 

The copying of work need not be deliberate to have infringed copyright. Key questions to be asked by a court is if copying part of the first work has saved the author of the second work significant time or trouble. The Copyright Act sets out exceptions to copyright infringement, and the consequences of infringing. An owner of copyright can permit or license other people to do certain things with their work.

Actions that are exclusive rights of the copyright owner

If you do any of the things that are exclusive rights of the copyright owner without the owner’s consent, you will infringe copyright, unless one of the exceptions set out in the Copyright Act applies. The following section deals with practical issues that often arise in deciding whether a copyright infringement has taken place.

Have I reproduced the work?

You must have used the original work to produce the reproduction. If you have created a very similar work independently, without reference to the original work, it is not a reproduction. However, the copying doesn’t have to be deliberate; if you have been exposed to the original work, do not consciously remember it, but unconsciously copy it, the copy is still a reproduction. A famous example is George Harrison’s unconscious use of “He’s So Fine” in composing “My Sweet Lord”.

Where it can be proved that two works are objectively similar, and the author of the second work has had access to the first work, a court is likely to conclude that the second work is a reproduction of the first work, unless the author of the second work can provide some evidence of independent creation. Conversely, if it is proved that the author of the second work has made conscious use of the first work, it is very likely that a court will hold that there is sufficient objective similarity to constitute infringement.

A reproduction need not be made directly from the original work. For example, if you make a copy of a photograph of a picture, the copy is a reproduction of both the photograph and the picture. A copy of a spare part has been held to be a reproduction of the plans from which the spare part was made. In Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49, the High Court held that the reproduction of a numerical table forming part of a computer programme, which was achieved by a process of reverse engineering rather than direct copying, was still a reproduction.

If you copy characters and plots from a work of fiction or drama but use a different language to tell the story, you may infringe the copyright in the original work. For example, the Disney “book of the film” of The Jungle Book does not use the same language as Rudyard’s Kipling’s book, but it is still recognisable as a reproduction of a substantial part of Kipling’s book. Taking the underlying idea of a book (e.g. a child brought up by wolves), but not copying the way in which Kipling developed the character of Mowgli or copying specific incidents from The Jungle Book, would not be a reproduction of Kipling’s work. However, doing this would be likely to lead to a claim that the author has falsely represented a connection with the owner of the copyright in The Jungle Book.

Have I performed copyright material in public?

A performance may be treated as a public performance even if there is no admission fee, or even if the audience is limited to a particular group. For example, a court has held that playing music to the workers in a factory was a public performance. For this reason, public performances include non-commercial performances, such as school concerts, or video nights for fundraising purposes in private premises.

Has the infringing act involved a substantial part of the work?

Using a substantial part of a work (or other copyright material) is treated the same way as using the whole work (s 14). The Copyright Act does not define “substantial part”. While there are many cases dealing with what is substantial, it is difficult to generalise.

Whether part of a work is substantial depends both on how large the part is in proportion to the whole work, and on how important that part is. For example, approximately a quarter of a computer programme has been regarded as a substantial part of the programme. The reproduction of a relatively small part in length of a musical work may be treated as reproduction of a substantial part of the work, if the reproduction includes the main musical theme.

A rule of thumb often quoted by courts is that if part of a work was worth copying, it is worth protecting. In other words, if copying part of the first work has saved the author of the second work significant time or trouble, it is probably a substantial part for the purposes of copyright law. However, when part of a work is not original, copying that part alone will usually not be treated as copying a substantial part of the work as a whole.

Authorising an infringement of copyright

If you authorise another person to do any of the things that are the exclusive rights of the copyright owner without the owner’s consent, you are infringing that copyright yourself. Authorisation is not limited to expressly giving permission to do something, but can also extend to failing to prevent an infringement you are aware is likely to occur, if you have the power to do so.

There have been a number of cases where suppliers of copying equipment (e.g. cassette recorders) have been sued by copyright owners. The copyright holders have usually been unsuccessful because the equipment could also be used to copy material that is not copyright.

However, the Federal Court has held that the operators of a website that enabled users to share music files had authorised the copying of the music because the operators had failed to take feasible steps to limit copying and had indirectly encouraged it (Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187).

In contrast, an internet service provider was held not to have authorised infringement of copyright by merely providing the internet access used by its customers for infringing file sharing activities (Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16). The Commonwealth Parliament has recently passed legislation amending the Copyright Act to allow copyright owners to obtain court orders requiring ISPs to block access to “pirate” websites, but it is too soon to see how it will work in practice.

Sale, distribution or importation

If an article (e.g. a record or book) was made in Australia, and you know, or ought to know, that making it infringed copyright (in other words, it is a pirate copy), you will infringe copyright if you sell it, hire it out, distribute it commercially, or exhibit it by way of trade (s 38) (e.g. by displaying it at a book fair).

If you know, or ought to know, that you could not make an article in Australia without infringing copyright, you will infringe copyright if you import it for the purpose of selling or hiring it out, distributing it commercially or exhibiting it by way of trade without the consent of the copyright owner. You will also infringe copyright if you sell or hire it out, distribute it commercially, or exhibit it by way of trade, even if someone else imported it. This applies even if the article was made overseas with the copyright owner’s permission. Importing an article for private use (without the copyright owner’s permission) does not infringe copyright (ss 37, 38).

There are important exceptions to sections 37 and 38 that allow the importation and sale of legitimate copies of sound recordings (CDs), computer software, and electronic copies of books (e.g. ebooks), periodicals and sheet music without the copyright owner’s consent. The importation of legitimate hard copy books without the copyright owner’s consent is also permitted, subject to some limitations.

Licensing copyright

A copyright owner can permit or license other people to use their work (e.g. copy the material) in ways that would otherwise infringe copyright. Licences do not need to be in writing, but should be if the copyright material is valuable. Sometimes a licence to exploit copyright material can be implied from the owner’s conduct. For example, the author of a book of sample complaint letters grants buyers of the book an implied licence to copy individual letters for the purpose of making complaints (but not to reproduce the whole book).

There are a number of bodies that represent copyright owners in relation to licensing; these are a useful first contact if you wish to reproduce copyright material. They are:

APRA AMCOS (broadcasting or public performance of musical works, and recording or copying published music);

Phonographic Performance Company of Australia (PPCA) (broadcasting or public performance of sound recordings and music video clips);

Screenrights (rights in relation to film and television programs);

Viscopy (reproduction of artistic works); and

Copyright Agency Limited (CAL) (reproduction of published literary works).

Contact details for these organisations are at the end of this chapter.

Acts permitted by the Copyright Act

Australia’s copyright law (unlike that of the USA) does not include a general defence to copyright infringement that the defendant’s use of the work was fair or for a purpose that should not be illegal. Instead, the Copyright Act sets out a number of specific circumstances in which reproducing a substantial part of a work does not infringe copyright. These circumstances are complex, and are not amended often enough to keep up with technological change.

In June 2013, the Australian Law Reform Commission published a discussion paper recommending these specific provisions be replaced with a general exception to copyright infringement that the use of a copyright work was “fair use” in view of the purpose and character of the use, the nature of the copyright material, the extent of reproduction, and the effect of the use on the value of the copyright material. The Productivity Commission has made a similar recommendation in its 2015 draft report on intellectual property. Legislation to give effect to these recommendations has not been introduced. The specific exceptions in force at present are described below.

Fair dealing for research or study (ss 40, 103A)

There are two ways of deciding whether copying is fair dealing for the purpose of research or study.

The first way depends on the exact amount copied. The following all constitute fair dealing, provided only one copy is made:

copying one or more articles in a periodical for the purpose of a single piece of research or a single course of study;

copying no more than one chapter or 10 per cent of the total number of pages of a published edition of a work (other than a periodical article or a computer programme), provided the work is at least 10 pages long; and

copying no more than one chapter or 10 per cent of the total number of words of a published literary work in electronic form (other than a periodical article, a computer programme or database).

The second way of establishing fair dealing is not restricted to copying any particular amount of the work or audiovisual item (sound recording or film), although the amount copied is relevant. Other relevant factors are the reason for the copying, whether the work could be bought in a reasonable time at an ordinary commercial price, and the effect of the copying on the value of the work. For example, it may be necessary to reproduce the whole of a short letter in a historical thesis in order to analyse the writer’s attitude to the matters discussed in the letter.

Fair dealing for criticism or review (ss 41, 103A)

No quantities are specified to constitute fair dealing of copyright material for criticism or review. In some cases, it may be necessary to reproduce the whole work (e.g. a short poem) to criticise it. It is necessary to sufficiently acknowledge the copied work by including a statement identifying the author and the work.

Fair dealing for satire or parody (ss 41A, 103AA)

These sections (inserted into the Copyright Act in 2006) permit any fair dealing with a copyright work or audiovisual item for the purpose of satire or parody. It is not clear what constitutes a fair dealing in this context, but it is likely to depend on the author’s intention to create a genuine satire or parody (rather than depending on the amount of the original reproduced or the degree of similarity between the two works).

There is no exception in the Copyright Act for the respectful reproduction of a work or audiovisual item in a new creative item (e.g. “homage”); if you want to do this, you need the copyright owner’s consent.

Fair dealing for reporting news (ss 42, 103B)

The news must be reported in a newspaper, magazine or similar periodical, or by a film or broadcast. Adequate acknowledgment of the copied work must be given.

Temporary reproductions (ss 43A, 43B, 111A, 111B)

These sections of the Copyright Act permit the temporary reproductions that occur in the course of using computers and other devices with memory (e.g. to download internet content or play legitimate copies of computer games).

Format shifting (ss 43C, 109A)

Section 43C permits the owner of a legitimate book, newspaper or periodical to make copies of it in a different form (e.g. by transferring it to CD) for private use. The owner must not dispose of the original work, or deal with the copy by way of trade, but may lend the copy to members of the owner’s family or household for private use.

Section 109A permits the owner of a legitimate sound recording to make copies of it (which need not be in a different form) for private use. The original sound recording must not have been made by downloading a broadcast over the internet (podcasting). This section means that a CD may be copied to another CD or transferred to a computer or music player. The device used to play the copy must be owned by the owner of the sound recording. The owner must not deal with the original work or the copy by way of trade, but may lend either the original or the copy to members of their family or household for private use.

Computer programmes (ss 47AB–47H)

The reproduction of a computer programme is permitted for the following purposes:

running the programme for its normal purpose;

studying the functioning of the programme;

making a backup copy;

making interoperable products;

correcting programming errors; and

testing security.

In all cases, the copy must be made from a legitimate, not infringing, copy of the programme. The copy must be made by or on behalf of the owner or licensee of the legitimate copy. The right to make copies in the normal course of running the programme can be excluded by the licence granted by the copyright owner, but the right to copy for the other purposes cannot.

Public reading or recital, and broadcasting (s 45)

Reading or reciting in public (or broadcasting a reading or recital of) an extract of reasonable length from a published or dramatic work does not infringe copyright in that work. Sufficient acknowledgement must be made to avoid infringement. The term “reasonable length” is not defined in the Copyright Act.

Buildings and public sculptures (ss 65, 66)

Making a picture, photograph, film or television broadcast of a building, or of a sculpture that is in a public place, does not infringe copyright. If this were not the case, it would be almost impossible to take a street photograph without breaching copyright. However any artwork on a building (such as a mural or street art) cannot be copied other than as part of a picture of the building itself.

Copying of own work by artist (s 72)

An artist using elements from their earlier work does not infringe copyright in the earlier work (which may have been assigned to another person) provided that the artist does not repeat or imitate the main design of the earlier work. This is quite a narrow exception, so artists should be extremely careful when assigning copyright in their work.

Copying by libraries and educational institutions

There are detailed provisions in the Copyright Act (pts VA, VB) authorising limited copying of copyright works by libraries and educational institutions. These institutions must make information about such copying available to users and teachers.

Timeshifting (s 111)

This section (inserted into the Copyright Act in 2006) permits the recording of radio and television broadcasts for private use so they can be listened to or watched at a more convenient time. The recording must not be dealt with by way of trade.

Statutory licences of musical works and sound recordings (ss 55, 108)

If a recording of a musical work has been made in or imported into Australia for retail sale, with the agreement of the copyright holder, other people may make recordings of the same musical work for sale, subject to the payment of a royalty to the copyright owner. There are similar provisions in relation to the public performance of published sound recordings.

Further information about these statutory licences is available from APRA (for APRA’s contact details, seeContacts”).

Other exceptions

There are a number of additional circumstances in which the Copyright Act authorises the reproduction of particular types of copyright material (e.g. chemical labels, statutes, and court judgments).

Consequences of infringing copyright

A copyright owner may bring legal proceedings against a person who has infringed their copyright in a Victorian court (i.e. the Magistrates’ Court, the County Court or the Supreme Court, depending on the amount of damages sought) if there is a connection with Victoria (e.g. the infringement occurred in Victoria or the defendant lives there). (See An introduction to the courts, for further information about Victorian courts.) Legal proceedings for copyright infringements may also be brought in the Federal Court and the Federal Circuit Court. Appeals from all these courts are heard by a full Federal Court of three judges, not by a state Court of Appeal.

Legal proceedings may be brought by the copyright owner, or by an exclusive licensee (a person who has been granted a written licence to reproduce the copyright material, which does not allow anyone else, even the copyright owner, to reproduce the material).

The procedures used by courts to decide copyright cases are the same as those used in other civil cases. However, the Copyright Act provides that the plaintiff does not have to prove that they are the copyright owner unless the defendant denies this. The plaintiff also does not have to prove that the person named on the work as the author or publisher of that work was the true author or publisher.

A court may order the defendant to stop infringing copyright, to give the copyright owner any infringing material, and to pay the copyright owner damages or the profits made from the infringement. If the defendant did not know, and had no reasonable grounds to suspect, that they were infringing copyright, they will not be required to pay damages, but may still be required to give the copyright owner any profits they have made from the infringement. Damages may be increased if the infringement involves a deliberate disregard for the copyright owner’s rights. For example, a business owner who used a professional photograph on a website without the copyright owner’s consent was ordered to pay USA$1,850 compensatory damages (the photographer’s usual licence fee) and additional damages of AU$12,500, because she had knowingly and deliberately infringed copyright, and had not offered to remove the photograph or pay a licence fee when challenged. Defendants may also be ordered to pay the copyright owner’s legal costs.

The same remedies may be granted against a defendant if they have facilitated the infringement of copyright material (s 116A). This is most relevant to computer software, electronic music or video files, ebooks, CDs and DVDs. The prohibited acts include removing copyright information or methods of preventing copying from copyright material, supplying or importing material to which this has been done, and making, supplying or using a device in order to defeat protection against copying.

Copyright infringement and the other acts described above are criminal offences if you do them when you know, or ought to reasonably know, of the infringement. While prosecutions for these offences are relatively uncommon, due to the difficulty of proving the relevant facts beyond reasonable doubt, copyright owners are becoming more aggressive in seeking criminal prosecution.