Infringement of Copyright
- Copyright in a work is infringed if another person reproduces a substantial part of that work without the copyright owner’s permission.
- A work is reproduced if it is copied, published, performed in public, communicated online or transmitted electronically or adapted.
- Whether or not a “substantial part” of the work is reproduced depends predominantly upon the quality of the reproduced part. If the reproduced part is the most important part of the work, only a very small component of the work need be reproduced to infringe copyright.
- Generally, only the copyright owner or the exclusive licensee of the copyright are entitled to commence copyright proceedings.
- Consequently, the party commencing the proceedings must demonstrate that they own the copyright.
- The copyright owner is generally either the work’s author. Alternatively, if the work was created in the course of the author’s employment, the author’s employer will own the copyright. Copyright, like any piece of personal property, can also be transferred to other persons.
- Parties can experience great difficulty establishing copyright ownership where:
(a) the author cannot be identified (often the case for old works or large scale works created by multiple authors); or
(b) the copyright has been transferred several times, because the purported owner must establish a chain of title stretching back to the author.
Defences to Copyright Infringement
- There are a number of statutory defences to copyright infringement. These may be used to resist a claim of copyright infringement in appropriate circumstances. Some of the defences available under the Act include:
(a) Fair Use for Research or Study - works that are reproduced for the purposes of research or study, and constitute fair dealing may not infringe copyright;
(b) Criticism and Review – copyright may not be infringed where a reviewer provides sufficient acknowledgement of the author is made in association with the review;
(c) Reporting News – works will not be infringed where they are reported in the news, provided sufficient acknowledgement of the author is provided. This may include a newspaper, magazine, electronic news broadcast or in a film.
Groundless Threats to Sue
- Section 202 of the Copyright Act provides that a person who is subject to an unjustified threat of legal action for copyright infringement may bring a proceeding against the person making the threat.
- There are a number of remedies available to a person who is subject to unjustified threats, therefore careful consideration and proper advice ought to be taken before making a threat to take action for copyright infringement.
- A number of options are available to a plaintiff where their economic rights have been infringed. The copyright owner may apply for an injunction where it is necessary to insist that the infringing behaviour ceases prior to any further action being taken.
- The plaintiff may also seek monetary damages for loss suffered or may opt for an account of profits, requiring the defendant to account for all profits made as a result of the infringement.
- The Court may also award additional damages where it is proper in the circumstances, particularly where the infringement was particularly flagrant or where there is a need deter that conduct.
- Criminal liability, including fines and imprisonment, may attach to commercial scale copyright infringement.
- The copyright owner must commence copyright infringement within six years of the infringement occurring.
- Copyright proceedings are generally heard in the Federal Court of Australia.
- While the proceedings may be heard in the ordinary list, the Federal Court has developed a Fast Track List with copyright proceedings directly in mind.
- Proceedings in the Fast Track List are much simpler and faster than proceedings in the ordinary list, because:
(a) relatively informal “Fast Track pleadings” are used, rather than traditional pleadings;
(b) the scope of discoverable documents is significantly reduced; and
(c) the timeframes for filing Fast Track Pleadings and setting the trial date are very short.
Misleading and Deceptive Conduct and Passing Off
- Section 18 of the Australian Consumer Law (Schedule 2 to the Consumer and Credit Act 2010 Cth) provides that conduct that misleads or is likely to mislead or deceive consumers can amount to misleading and deceptive conduct.
- Copyright infringement may lead to misleading and deceptive conduct where a product or item is presented to consumers as the work of a person other than the copyright owner. Similarly, copyright infringement may also lead to an action in Passing Off.