The Law Handbook 2024

Chapter 7.6: Copyright 761 also extend to failing to prevent an infringement you are aware is likely to occur, if you can do so (ss 36, 101 Copyright Act). There have been a number of cases where suppliers of copying equipment 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 infringing. 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 ( ISP ) 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). ISPs also enjoy the benefit of the Copyright Act’s ‘safe harbour’ provisions (pt v, div 2AA) that limit remedies against ISPs if they comply with certain conditions. On 29 December 2018, this protection was extended to libraries, archives, educational institutions, and organisations assisting people with disability. Section 115Aof the Copyright Act allows copyright owners to obtain court orders requiring ISPs to block access to overseas ‘pirate’ websites; film, television and music interests have successfully obtained such orders. It has been extended to allow copyright owners to seek orders against search engines (e.g. Google) to disable Australian search results from pirate sites. Sale, distribution or importation If an article (e.g. a DVD 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 (e.g. by displaying it at a book fair) (‘commercial distribution’) (ss 38, 103). 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 commercial distribution without the consent of the copyright owner. You will also infringe copyright if you distribute it commercially, even if someone else imported it (ss 37, 38, 102, 103). This applies even if the article was made overseas with the copyright owner’s permission (this is called ‘parallel importation’ or ‘grey marketing’) (see ‘Parallel importation’ in Chapter 7.7: Trade marks). Importing an article for private use (without the copyright owner’s permission) does not infringe copyright. There are important exceptions that allow the importation and sale of legitimate copies of sound recordings (e.g. CDs) (ss 44D, 112D), computer software (s 44E), and electronic copies of books (e.g. ebooks), periodicals and sheet music (ss 44F, 112DA) 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 (ss 44A, 112A). There are also exceptions for the importation and commercial distribution of copyright material contained in a ‘non-infringing accessory’ to an article (e.g. a label, packaging, instructions, or an instructional video) (ss 10(1), 10AD, 44C, 112C). The reason for these provisions is to prevent traders using copyright in incidental materials (e.g. a label on a bottle of wine) to control the importation and sale of goods that can otherwise be freely traded. Licensing copyright A copyright owner can permit or license other people to use their 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 circumstances (including any contract between the parties) to allow the material to be used for the purpose for which it was created. However, if the user wants to use the material for a different purpose, they may need to seek the copyright owner’s permission. A court has held that permission by an artist for her drawings to be used for promotional purposes did not include use on a wide range of merchandise. (See ‘What are the terms of a contract?’ in Chapter 7.1: How contract law works.) Exclusive and non-exclusive copyright licences A copyright licence can be either exclusive or non- exclusive. ‘Exclusive’ means that the licensor (the