Copyright Infringement Australia

What is copyright?

Copyright is a type of intellectual property, that gives a bundle of exclusive rights to the copyright owner. For small business owners, this means that you are able to control and determine how your work may be used by others. Copyright protects only the form in which ideas and information are expressed, however not the ideas and information themselves.

Copyright’s scope of protection is provided by:

• legislation, i.e. the Copyright Act 1968 (Cth));
• case law; and
• various international agreements Australia is a party to (e.g. Berne Convention for the Protection of Literary and Artistic Works).

Australian copyright laws

It is important for you to know that in Australia, copyright is free and automatic upon creation of the work. It therefore does not depend upon registration on an official register with IP Australia. Works and subject matter published before the current Copyright Act’s inception may also potentially be covered.

Ultimately, copyright protection is offered for:

• “Works” (literary, dramatic artistic and musical); and
• “Other subject matter” (films, recordings, broadcasts and published editions); and
• “Performances”.

In most instances copyright protection for works, subject matter and performances will arise when the person was a “qualified person” at the time the work or subject matter was made or published or the performance given.

Who is a “qualified person” in copyright law?

In Copyright Law, a qualified person is someone who is:

• an Australian citizen, or
• person resident in Australia.

This also applies to performers and can include body corporates.

Work or subject matter has to be first published or made in Australia

Start-ups and business owners take note! For material to be eligible for copyright protection it has to first be published or made in Australia.

The Copyright Act 1968 (Cth) also spells out the concept of “publication” in more detail depending on the format in which the work is reproduced to the public.

Copyright – material form and authorship

• For the subsistence of copyright, material needs to be in a material form. That is, despite whether it is visible or not, the work or adaptation is able to be reproduced by someone else.
• The work or subject matter cannot only exist in the author’s mind but it needs to be capable of protection to begin with. Generally speaking, the author will be the first owner of copyright – see s35(2) of the Copyright Act 1968 (Cth).

What is considered copyright infringement?

A person or entity that does not obtain permission or a licence from a copyright holder before using an original work, subject matter or performance, commits copyright infringement.

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Copyright infringement may be direct or indirect

What is direct copyright infringement?

Direct copyright infringement occurs when an individual or entity uses copyrighted material itself without permission.

• Copying someone’s entire book or song and publishing this, claiming it to be your own work.

What is indirect copyright infringement?

Indirect copyright infringement involves a further act in relation to the initial infringing act. For example:

• The importation and sale of infringing copies.
• The act of allowing an entertainment venue to be used for infringing performances of art, drama or music. Specifically, this involves an element of ‘authorisation’.
• People who have tattoos, authorising others to take photos of their tattoos when they don’t own the copyright to the artistic work.

“Substantially similar” and “substantial part” requirements

Per the case Francis Day & Hunter v Bron [1963] and the Copyright Act 1968 (Cth),  reproduction needs to be objectively, “substantially similar” and there needs to be a casual connection for infringement to have taken place.

In the Ladbroke v William Hill [1964] case it was held that “reproduction” means copying.

Per the cases Hawkes & Son (London) Ltd v Paramount Films Service Ltd [1934] and IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009), infringement doesn’t have be in relation to the “whole” of a work or subject matter. The quality of the part copied will also be an important consideration.