How to deal with infringement

Contributed by Australian Copyright Council and current to May 2022

If your copyright and/or moral rights have been infringed, there are a number of steps that you can take before taking the matter to court.

What do you want?

You should decide how you would like the matter resolved and what you want from the infringing party. A lawyer may be able to help you work out what is appropriate. You may be entitled to demand any or all of the following:

• that the infringement stops (an ‘injunction’)
• that infringing copies of your material be delivered to you, or disposed of as you direct
• that any master copies or plates used to make infringing copies be delivered to you, or disposed of as you direct
• that either you be paid for the use of the work, or you be given the profits the infringer has made from it, and
• that a court order a carriage service provider to block access to a foreign website that has the primary purpose to infringe, or to facilitate infringement of, copyright.

In deciding how much money you require the infringer to pay for use of the material, you could consider what you would have charged if your permission had been obtained (a licence fee). However, it would generally be reasonable to ask for more than you would have charged, because your permission was not sought and you have had to chase the infringer and may have spent money on, for example, legal advice.

Contact the infringer

Once you are confident that you have a basis for your claim and have worked out what you want from the infringer, you may be able to resolve the matter informally by contacting the person and explaining what you want them to do to resolve the matter. Often people don't mean to infringe copyright - they may do so through ignorance, or carelessness. In such cases, people may be willing to settle the matter in a friendly way.

Letter of demand

A letter of demand, written by yourself or your lawyer is also an effective step to take. A letter of demand should include the following:

• A statement that you are the copyright owner (or the basis on which you can make a claim)
• How you believe the person has infringed your copyright (e.g. by reproducing your work on a website without your permission)
• A clear statement of what you require (e.g. ceasing the infringing action, destruction of infringing copies and or payment of a stated sum of money)
• A time frame in which the demand(s) must be met (e.g. 14 days after the letter’s date), and
• A statement that further action may be taken if the demand(s) is not met within the specified time frame.

Copies of any relevant documentation referred to should be attached to the letter (e.g. invoices, contracts, images or correspondence).

Before sending a letter of demand, check that you have solid grounds to do so. In some circumstances, letters claiming that someone has infringed copyright may result in problems under the law of defamation or under s 202 of the Copyright Act (which prohibits the making of groundless threats of legal proceedings).

Court action

Where the matter is not settled after a letter of demand has been sent, you will need to decide whether you wish to take the matter to court. Generally, it is a good idea to get a lawyer to act for you, or to advise you on how to go about legal action and the likely result.

For further information, see the Australian Copyright Council fact sheets Infringement - What Can I Do? and Infringement: Action, Remedies, Offences & Penalties.