Infringement of copyright

Contributed by Australian Copyright Council and current to May 2022

How is copyright infringed?

Copyright is infringed when the whole or a substantial part of a work is used in one of the ways controlled by the copyright owner (e.g. reproduction) without permission, and an exception to infringement does not apply to the use, see Australian Copyright Council fact sheet Infringement - What Can I Do? and Part III Division 2 for works and Part IV Division 6 for other subject matter.

If someone has created a copyright work that is very similar to yours, but the similarity is pure coincidence and they have not actually copied your work, then there is no copyright infringement. For copyright infringement to occur, there must be not only a similarity between the two works but also a causal link (i.e. some evidence that other person actually copied your work).

Substantial Part

A common misconception about copyright is the so-called ‘10% rule’. In reality, the measure of whether or not copyright has been infringed is whether a person has used a ‘substantial part’.

A ‘substantial part’ is a question of both quality and quantity. This means, if what is being used is an important, essential or distinctive part of the copyright material, it will likely infringe copyright even if it is only a small amount. Even if you do not directly reproduce the material, but paraphrase or closely follow its structure, you may still be using a substantial part which may be copyright infringement.

As a rule of thumb, if the material you are using is recognisable as having come from another source, it is likely to be a ‘substantial part’ of the source material.

For more details, see the Australian Copyright Council fact sheets Quotes & Extracts and Infringement: What Can I Do?.

Direct and indirect infringement

Copyright can be infringed both directly and indirectly.

A 'direct infringement’ is where a person infringes copyright themselves. Examples of this include downloading eBooks, music, movies or TV shows from unauthorised websites; using photographs or images in your blog without permission from the original artist; or live-streaming a TV broadcast using your smartphone onto your social media.

An ‘indirect infringement’ is where another person enables another person to infringe copyright. For example, if Person A gives a copy of someone’s photograph to a friend, Person B, who then uses the photograph on their personal website without permission, the copyright owner of the photograph could take legal action not just against Person B for the actual infringement, but also against Person A for enabling the infringement to happen.