Infringement of copyright
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 1968 (Cth) (‘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. In Data Access Corporation v Powerflex Services Pty Ltd  HCA 49, the High Court held that the reproduction of a numerical table forming part of a computer program, which was achieved by a process of reverse engineering rather than direct copying, was still a reproduction.
An artistic work can be reproduced from two dimensions to three dimensions and vice versa (s 21(3) Copyright Act); therefore, a house is a reproduction of its architectural plans.
If you copy characters and plots from a work of fiction or drama but use a different language to tell the story, you may reproduce the original work. For example, the 1967 Disney ‘book of the film’ of The Jungle Book did 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. (Note that, because Kipling died in 1936, The Jungle Book is now out of copyright in Australia – see ‘Duration of copyright’.)
Copying the ‘look and feel’ or functionality of a computer program will generally not infringe the copyright in the program if there has been no direct copying or reverse engineering of the source code (see EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd  NSWSC 1310). However, where there is access to the source code, copying aspects of the structure, sequence and organisation of the code may amount to infringement.
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 (e.g. school concerts, or fundraising video nights held at 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 Copyright Act). 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 program has been regarded as a substantial part of the program. 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 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 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  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  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 a disability.
In 2015, a new section 115A was introduced into the Copyright Act to allow 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.
On 11 December 2018, section 115A was 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 Copyright Act).
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 Copyright Act). 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 ‘Using trade marks overseas‘). 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 Copyright Act), 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 Copyright Act).
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 Copyright Act). 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.
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 ‘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 person who grants the licence) cannot allow anyone else, including itself, to use the rights granted by the licence. A written exclusive licence enables the licensee to sue for copyright infringement (ss 10, 119 Copyright Act).
A non-exclusive licence allows the licensor to grant as many other licences as it wishes.
Copyright licensing bodies
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 include:
- APRA AMCOS (broadcasting or public performance of musical works, and recording or copying published music);
- PPCA (broadcasting or public performance of sound recordings and music video clips);
- OneMusic Australia (offers combined public performance licences for APRA, AMCOS and PPCA material);
- Screenrights (rights in relation to film and television programs); and
- Copyright Agency (incorporating Viscopy) (reproduction of published literary, artistic works).
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 2013, the Australian Law Reform Commission recommended 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 made a similar recommendation in its 2016 final report on intellectual property. Legislation to give effect to these recommendations has not been introduced.
There are many specific exceptions in force. Some require that the dealing with the copyright material must be ‘fair’ – see factors considered in section 40(2) of the Copyright Act; see also ‘Fair dealing for research or study’, below. Exceptions include the following.
Fair dealing for research or study (ss 40, 103C Copyright Act)
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 program), provided the published edition 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 or dramatic work in electronic form (other than a periodical article, a computer program or database).
The second way of establishing fair dealing is set out in sections 40(2) and 103C(2) of the Copyright Act. It is not restricted to copying any particular amount of the work or audio-visual item (sound recording, film, sound or television broadcast (s 100A Copyright Act)), although the amount copied is relevant.
Other relevant factors are the nature of the work or audio-visual item, the reason for copying, whether the work or item could be bought in a reasonable time at an ordinary commercial price, and the effect of the copying on the work’s or item’s value. For example, it may be necessary to reproduce the whole of a short letter in a historical thesis to analyse the writer’s attitude to the matters discussed in the letter.
Fair dealing for criticism or review (ss 41, 103A Copyright Act)
No quantities are specified in the Copyright Act 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 material, which, for works, means identifying the author and the title (s 10(1) Copyright Act).
Fair dealing for satire or parody (ss 41A, 103AA Copyright Act)
These sections permit any fair dealing with a copyright work or audio-visual item for the purpose of satire or parody.
The essence of parody is imitation. Satire does not use imitation but is a form of sarcastic, scornful or ridiculing criticism of vice or folly. This defence succeeded in AGL Energy Ltd v Greenpeace Australia Pacific Ltd  FCA 625, where the climate advocate Greenpeace used AGL’s logo with the words ‘Australia’s greatest liability’.
There is no exception in the Copyright Act for the respectful reproduction of a work or audio-visual 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 Copyright Act)
The news must be reported in a newspaper, magazine or similar periodical, or by a film or communication. Adequate acknowledgment of the copied work must be given (in periodicals).
Fair dealing, or use by an organisation, for access by people with a disability (ss 113E, 113F Copyright Act)
A relevant disability is one that causes the person difficulty in reading, viewing, hearing or comprehending copyright material in a particular form (s 10(1) Copyright Act).
For organisations that assist people with a disability, this defence requires that the material cannot be obtained in that format (e.g. an audio version) within a reasonable time, and at an ordinary commercial price.
To establish this fair dealing defence, relevant factors are the nature of the work or audio-visual item, the reason for copying the work, and the effect of the copying on the work’s or item’s value.
Temporary reproductions (ss 43A, 43B, 111A, 111B Copyright Act)
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 Copyright Act)
Section 43C of the Copyright Act permits the owner of a legitimate book, newspaper or periodical to make one copy of a work in a different form (e.g. copying an article to a computer hard drive) for private use. The owner must not dispose of the original book, 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 of the Copyright Act 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 (‘original version’) must not have been made by downloading a broadcast over the internet (podcasting). This section means that a sound recording may be copied (e.g. to a computer or mobile phone). The device used to play the copy must be owned by the owner of the original version. The owner must not deal with the original version 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 programs (ss 47AB–47H Copyright Act)
The reproduction of a computer program is permitted for the following purposes:
- running the program for its normal purpose;
- studying the functioning of the program;
- 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 program. 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 program 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 Copyright Act)
Reading or reciting in public (or broadcasting a reading or recital of) an extract of reasonable length from a published literary 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, public sculptures, and artwork on buildings (ss 65–70 Copyright Act)
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. However, any artwork on a building (such as a mural or street art) cannot be copied other than as part of a picture, etc. of the building itself.
Copying of own work by artist (s 72 Copyright Act)
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 (pt IVA) authorising limited copying of copyright works by libraries and archives (for preservation or research) free of charge. Educational institutions are also authorised to undertake limited copying, subject to licence fees payable to collecting societies (e.g. the Copyright Agency and Screenrights).
Timeshifting (s 111 Copyright Act)
This section 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 Copyright Act)
If a record 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 records 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.
Contact APRA AMCOS or PPCA for information about statutory licences.
There are other circumstances in which the Copyright Act authorises the reproduction of particular types of copyright material (e.g. statutes and court judgments (s 182A Copyright Act) or the use of copyright material for legal proceedings or for giving legal advice (ss 43, 104)).
There is even a defence to copyright infringement in s 57CD of the Competition and Consumer Act 2010 (Cth) for supply of information under the Motor Vehicle Service and Repair Information Sharing Scheme, provided compensation is paid.
Consequences of infringing copyright
Legal proceedings against a person who has infringed copyright may be brought in a Victorian court (i.e. the Magistrates’ Court, County Court or 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). However, legal proceedings for copyright infringements are more usually brought in the Federal Court and the Federal Circuit and Family 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 (ss 115, 119 Copyright Act). See ‘Licensing copyright’, above.
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 certain things (e.g. that they are the copyright owner, or that the person named on the work as the author was the true author), unless the defendant denies this (ss 126–131 Copyright Act).
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 (ss 115, 116 Copyright Act).
For example, a business owner who used a professional photograph on a website without the copyright owner’s consent was ordered to pay USA$1850 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 done certain acts to circumvent a technological protection measure (TPM), which is designed to control access to copyright material (e.g. a password), or to prevent infringement. This is most relevant to computer software, electronic music or video files, ebooks, and DVDs. Making, importing and distributing a device designed to defeat a TPM is prohibited, as is removing or altering electronic copyright information, and importing or distributing works with their electronic information altered or removed (ss 116AK–116D Copyright Act).
Copyright infringement and the other acts described above are criminal offences if done for a commercial purpose (ss 132AA–133B Copyright Act) although prosecutions for these offences are uncommon.