Copyright

Contributed by DavidPrice, as amended by ChamilaTalagala at School of Law, Charles Darwin University and current to June 2025

This section deals with the general principles and issues associated with the copyright laws, and the most commonly asked questions about copyright.

Abbreviations used in this chapter

What is copyright?

Copyright is a type of intellectual property, which is a form of personal property that is intangible, meaning it cannot be physically touched. It gives the creator of an original work, such as a book, artwork, or software, the exclusive right to use, reproduce, distribute, and profit from that work for a certain period of time. Intellectual property refers to creations of the mind, such as inventions, artistic works, brand names, or confidential business information. Along with copyright, other common types of intellectual property include patents, trademarks, designs, and trade secrets.

What law governs copyright in Australia, including the Northern Territory?

Copyright protection in Australia is provided under national legislation rather than through common law rights. It exists to protect the interests of creators and owners of original creative works. The principal legal framework is the Copyright Act 1968 (Cth) (CA), a piece of Commonwealth legislation that applies across all states and territories, including the Northern Territory (NT).

The Act sets out the rules regarding how copyright works, who holds rights, and which types of creative works are protected. It has been amended over time to reflect changes in technology and content creation, including developments related to the internet. In addition to the main Act, two sets of regulations support its application:

• The Copyright Regulations 2017, which provide detailed procedures and requirements.
• The Copyright (International Protection) Regulations 1969, which explain how Australia protects the copyright of works from other countries and how foreign works are treated under Australian law.

Although the NT has its own government, copyright law is managed at the national level, meaning the same rules apply there as in the rest of the country. Court decisions also play a role in interpreting the legislation.

In the modern context, Australian copyright law is increasingly being challenged by the rise of artificial intelligence (AI). AI systems can now generate text, images, music, and other forms of content that closely resemble human-created works, raising complex legal questions about authorship, ownership, and originality. Additionally, the way AI tools are trained, often by processing vast amounts of copyrighted material, has sparked debate over whether such use constitutes copyright infringement or falls under existing exceptions, such as fair dealing. These developments are testing the boundaries of the current legal framework, which was not designed with autonomous or semi-autonomous content creation in mind. As a result, there is growing recognition that copyright law may require further reform to remain effective and relevant in the age of AI.

Why do we have intellectual property laws, including copyright?

Intellectual property (IP) laws are designed to protect creations of the mind, like inventions, artistic works, brand names, and designs. These laws help creators control and benefit from their work. At the same time, they aim to strike a balance between the interests of the original creator, their competitors, and the public. The ongoing debate over this balance typically involves two main arguments:

• The moral argument: This is about fairness. It argues that creators should be recognised for their effort and that it is unfair for someone to take advantage of another person’s work without permission.
• The economic argument: Society benefits from new ideas and inventions. If creators do not receive any reward for their work, there is less incentive for innovation. However, if protection is too strong, it can limit access to inventions and useful ideas. The goal is to find the right balance, where creators are encouraged to innovate, but inventions and ideas can also spread and be used by others once the protection period ends.

IP laws are essential for promoting innovation and creativity. When creators know their work is protected, they are more likely to invest time, effort, and money into developing new works. For instance, a musician or a tech company is encouraged to create when they know their work cannot easily be copied by others. This protection gives them the confidence to innovate without fear of losing control over their creations. IP laws also contribute to economic growth. They allow creators and owners of creative works to profit from their works, which encourages entrepreneurship, attracts investment, and creates jobs. Industries such as film, fashion, and pharmaceuticals rely heavily on IP protection to ensure that creators are rewarded for their work. Without this protection, businesses could lose their competitive edge to copied products. Another important aspect of IP laws is preventing unauthorised use. Without these protections, someone could easily copy or sell someone else’s work without giving credit or compensation. IP laws give creators legal tools to prevent this from happening, whether it involves a pirated movie or counterfeit products. IP rights, such as trademarks, are especially vital for maintaining brand integrity. They protect brand names, logos, and slogans, ensuring consumers can trust the products they buy. Without trademarks, distinguishing between authentic and fake products would be much more difficult, which could harm both businesses and consumers. Some types of IP, like patents, also encourage the sharing of knowledge. When an inventor applies for a patent, they are required to disclose how their invention works, helping others to learn. In return, the inventor gains temporary exclusive rights to profit from their invention. After the patent expires, the invention enters the public domain, and others are free to use it. This balance ensures that innovation continues, while the sharing of knowledge benefits society. In short, IP laws foster creativity and innovation, protect the rights of creators, and ensure society benefits from new ideas and inventions. The key is finding a balance that encourages both innovation and the sharing of knowledge.

Copyright law is particularly relevant in our daily lives, impacting a broad range of people such as authors, musicians, artists, filmmakers, and others who create and use creative works like books, films, music, and more. It also benefits businesses that own creative works and individuals who use these creations for their work. Copyright law is especially important in education, where it protects the use of materials like textbooks, research papers, and educational videos, allowing teachers and students to use these resources legally. In places like the NT in Australia, copyright law is crucial for Aboriginal artists and communities, whose traditional art and designs have often been exploited without permission. Protecting their intellectual property ensures that they can maintain control over their cultural heritage and receive compensation for their work. Even small business owners, who may not be directly involved in artistic fields, can benefit from understanding copyright. For instance, a small business that uses original creative works, such as images or photographs, for its products or marketing materials needs to know how to protect its works from being copied. Understanding copyright law helps businesses secure their assets, build their brand, and prevent unauthorised use of their content. Users of creative works, whether businesses, educators, or everyday consumers, also benefit significantly from copyright protections. These laws ensure that creators are fairly compensated for their efforts, which in turn fosters further innovation and creativity. Moreover, copyright laws play a vital role in preserving the integrity of products and content that users rely on, whether it's a textbook used in the classroom, a film enjoyed for entertainment, or a product purchased for personal use. Importantly, copyright law also allows for certain legitimate uses of works, such as fair use and licensing, ensuring that users can access and utilise creative content in ways that support education, commentary, research, and other public interests, while still respecting the rights of creators.

What does copyright protect?

For a creation to qualify for copyright protection, it must fall within the categories of subject matter covered by the CA, be expressed in a material form, and have a sufficient connection to Australia.

The CA recognises two main categories of protectable subject matter. The first includes original literary, dramatic, musical, and artistic works (Part III). These types of content are usually created by a specific person and are often simply called “works”. The second covers subject matter other than works, such as sound recordings, films, broadcasts, and published editions. Each category has its own set of requirements and protections (Part IV). These are typically referred to as “other subject matter”, related rights, or entrepreneurial rights.

Works: literary, dramatic, musical, and artistic

The CA protects a variety of original works. These include literary works like books, film scripts, and private letters. It also covers dramatic and musical works, such as plays and music compositions in musical notation. The Act protects artistic works and works of applied art, such as paintings, ceramics, and carvings. Additionally, it includes maps and technical drawings, and photographic works. Motion pictures and sound recordings, like movies, documentaries, and interviews, are also protected. Finally, computer programs and databases are included as well.

The CA defines literary works in a broad, non-exclusive way. It includes items such as tables, compilations expressed in words, figures, or symbols, and computer programs or collections of programs. This definition protects things like computer programs and tables, but it does not specify what might traditionally be considered “literary.” Business documents, catalogues, advertisements, lists, and newspaper reports are all considered literary works. In fact, almost any kind of writing can qualify, but single words or titles are not protected, as they are seen as too trivial or lacking originality. However, problems can arise when a person presents just a large amount of factual data, like the results of a horse race. In such cases, only the specific presentation of the facts, such as how the information is arranged or selected, will be protected. The presentation must show creativity or skill, and there must be more than a simple list of facts and figures. Also, there must be some creative effort in selecting, compiling, or summarising the material to create an original result.

Dramatic works include things like choreographed performances or silent shows, as well as scripts or scenarios for movies. However, the actual movie itself is not covered, just the script or scenario. Musical works are not specifically defined in the CA, but like literary works, they may not be required to be of a certain quality. This means that a song’s score is considered a musical work, whether it’s a catchy jingle or a grand opera piece. The lyrics, on the other hand, are a literary work. So, the copyright for the lyrics and music may belong to different people. If the song is recorded, it also has a separate copyright for the sound recording.

Artistic works include paintings, sculptures, drawings, engravings, or photographs, regardless of their artistic quality, as well as buildings or models of buildings, even if not artistically exceptional. It also includes works of artistic craftsmanship, even if they are not specifically mentioned in the first two categories, but excludes circuit layouts under the Circuit Layouts Act 1989. While the CA does not define what a “painting” is, this has led to legal debates, such as whether a caricature qualifies as a painting or cartoon, and whether a charcoal drawing counts as a painting. Photographs are protected by copyright, but taking another photograph of the same subject matter as an earlier one does not infringe on the original copyright, even if the new photo looks identical. Only copying the original photograph would infringe.

Originality

Originality refers to the requirement that a literary, dramatic, musical, or artistic work must originate from the author and not be copied from another source. However, originality does not mean the work must be novel, unique, or creative in the ordinary sense. Rather, the law protects the original expression of an idea, not the idea itself.

The threshold for originality in Australia is deliberately low. A work will be considered original if the author has applied some degree of skill, labour, and effort in its creation, regardless of whether the content itself is commonly known or used. Courts have consistently upheld that even if the material used is drawn from publicly available or widely known sources, a work may still be original if the author’s contribution is substantial enough in terms of how the material is selected, arranged, or presented. Importantly, originality can also apply to compilations and tables, as recognised under the CA. In these cases, originality may arise from the method of selection, arrangement, or organisation of the material. In Desktop Marketing Systems Pty Ltd v Telstra [2002] FCAFC 112, the full Federal Court held that Telstra held copyright in its white and yellow pages directories, albeit with a very low threshold of originality and creative contribution. In a similar case in 2010, Telstra Corporation Ltd v Phone Directories Companies Ltd [2010] FCAFC 149, the Court held that Telstra did not hold copyright in its yellow pages directories in this instance since the compilation had not been carried out through human endeavour, but by a sophisticated and fully automated computerised process. If copyright subsisted anywhere it was in the software program driving the automated system.

In determining originality, the creator’s intention to produce something with aesthetic value may still be relevant, even where the object serves a primarily utilitarian function.

Copyright protects only the expression

Copyright law protects only the expression of ideas, not the ideas themselves. This fundamental principle is known as the idea-expression dichotomy. Under this rule, copyright does not extend to general ideas, facts, themes, or information. Instead, it protects the specific way those ideas are expressed, through language, structure, form, or creative choices made by the author. For example, an idea such as “a hero’s journey to defeat evil” is free for anyone to use, but a particular novel that tells this story using unique characters, dialogue, and narrative structure will be protected as the author’s original expression.

The purpose of the idea-expression dichotomy is to maintain a balance between encouraging creativity and preserving access to shared ideas. If copyright were to protect ideas themselves, it would limit others from creating new works based on similar concepts. This could stifle innovation and restrict the development of literature, art, music, and other creative fields. By allowing the free use of ideas but protecting their expression, the law ensures that others can still draw inspiration and create original works of their own.

A practical example helps illustrate this point. Suppose two writers decide to write about a young orphan who discovers they have magical powers and must save the world. While the core idea is the same, each author might develop different characters, settings, and plot details. One may create a magical school, while another sets the story in a future society with a different magical system. Because they have each expressed the idea in a unique way, their works are both eligible for copyright protection, even though they are based on a similar theme.

The difficulty often lies in determining where to draw the line between an idea and its expression. In legal disputes, courts must decide whether what was copied is simply a shared concept or a distinctive expression of that concept. Copying a general idea, such as a love triangle or a story about revenge, is not copyright infringement. However, copying detailed scenes, specific dialogue, or a unique sequence of events may amount to a violation of the original work’s copyright.

'Other Subject Matter' protected

Other subject matter protected under the CA (Part IV) includes sound recordings, cinematograph films, broadcasts (both sound and television), and published editions of works. A “cinematograph film” is a collection of visual images that, when displayed together, create a moving picture. The definition of cinematograph films is broad and may include a computer game. Films are given separate copyright protection from the underlying dramatic work. The script or scenario of a film is categorised as a dramatic work, while the soundtrack is considered part of the film itself, not a separate sound recording.

A “sound recording” is a collection of sounds captured in a record, such as a disk, tape, or MP3 file. Copyright protection for sound recordings acknowledges the skill involved in capturing and preserving musical or other sounds in a permanent format.

A “broadcast” refers to a public communication of content via television or radio, as defined by the Broadcasting Services Act 1992 (Cth). Unlike other subject matter types, broadcasts do not require a material form to qualify for copyright protection. The focus here is on the significant investment in creating and distributing broadcast content. Copyright infringement in a broadcast can occur when even a single image from a broadcast is reproduced, which differs from the typical requirement of a substantial part for infringement.

“Published editions” relate to the typographical arrangement of works. This refers to the layout and formatting of printed material, such as how text is organised on a page. Published edition copyright protects the effort and skill invested in creating this layout, and it is distinct from copyright in the content itself. For example, a newspaper article may have both copyright in the literary content and in the way the article is formatted and presented.

Material form

A fundamental criterion for a work to be eligible for copyright protection under the CA is that it must be expressed in a tangible or material form. This stipulation is particularly applicable to literary, dramatic, musical, and artistic works. According to the CA, such works must have a physical manifestation before copyright protection can arise. Specifically, the Act states that a literary, dramatic, musical, or artistic work is considered to be “made” when it is first expressed in writing or another material format [s.22(1)]. Within this legal framework, the term “writing” encompasses any method of visually representing words, figures, or symbols, while “material form’ is broadly interpreted to include any mode of storing the work or a substantial portion thereof, regardless of whether it is visible or capable of reproduction [s.10]. See Zeccola v Universal City Studios [1982] FCA 241; (1982) 67 FLR 225; 46 ALR 189 (The 'Jaws' case); Thomas v Brown [1997] 215 FCA; [1997] FCA 215; (1997) 37 IPR 207 (the 'Aboriginal flag' case); and IceTV PTY LTD v Nine Network Australia Pty Ltd [2009] HCA 14.

This requirement presents particular challenges in the context of Indigenous Australian cultural expressions, such as those found in Aboriginal and Torres Strait Islander communities. Many of these cultural works, including songs and narratives, are traditionally maintained through oral transmission. Consequently, unless these expressions are documented in a material form, they do not fall within the scope of copyright protection under the current legal framework. Similarly, to get copyright protection for a dramatic or musical work, it must be in a “material form” like a written script or score. It is the script or score, not the live performance, that is protected by copyright.

Sufficient connection to Australia

The CA requires two criteria or “points of attachment” that must be satisfied for a work to qualify for copyright protection, namely:

• “Qualified person” criterion: copyright protection for works created in Australia is limited to persons who are “qualified” at the time the work was made. A “qualified” person is described as an Australian citizen or a person resident in Australia [s.32(4)].
• “Territorial” criterion: the essential requirement is that the subject matter was first published or made in Australia. Thus, works are protected where first publication took place in Australia: [s.32(2)]; films where the film was made in Australia or first publication took place in Australia [ss.90(2) & (3)]. In the case of performances, a live performance (but not necessarily the first) needs to have been made in Australia.

Works originating in foreign jurisdictions are afforded copyright protection in Australia on the same basis as domestically produced works, provided the country of origin is a party to the relevant international agreements to which Australia is also a signatory, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). These treaties require member states to extend the same level of copyright protection to foreign nationals as they do to their own citizens. Accordingly, Australian works are entitled to reciprocal protection in other signatory states, and Australia, in turn, is obligated to grant equivalent protection to works created by nationals of those countries.

'Neighbouring rights'

Sometimes the term 'neighbouring right' appears in respect of descriptions or commentaries on copyright. There are three types of 'neighbouring rights', namely:

• the rights of performing artists in their performances
• the rights of producers of phonograms in their phonograms
• the rights of broadcasting organisations in their radio and television programs.

Does copyright need to be registered?

There are no formal registration requirements for obtaining copyright protection. Copyright protection takes effect automatically once a work is expressed in a tangible form. There is no requirement to formally register the work or sign it in order to be legally protected. As long as the conditions set out in the CA are met, the work is considered protected under the law.

Although registration is not necessary, it is still wise for creators to clearly identify themselves as the authors. Including a name on the work, along with the copyright symbol (©) and the year of creation or first publication, can help establish authorship, especially in cases of ownership disputes.

Consider a situation where an author self-publishes a novel online, featuring their name in the title and a copyright notice in the introduction. Months later, a publishing company releases a book with a similar plot. The author could present several pieces of evidence to support their claim of original authorship:

• The title bearing their name, showing a direct link to the work.
• The copyright notice, indicating a clear claim of ownership.
• The date of publication, helping to prove that their work predates the other.

While none of these steps are legally required to gain protection, they can be powerful tools in defending the rights of the author. Importantly, using the copyright symbol or including a name does not create protection if the work itself does not qualify under the law, but these elements can strengthen a creator’s position in case of a legal challenge.

Rights conferred by Copyright law

Copyright law grants two fundamental types of rights to the owner of a protected work: economic rights and moral rights. These rights are distinct in nature and serve different legal and philosophical purposes.

1. Economic rights are proprietary in nature and relate to the commercial exploitation of the work. They enable the copyright holder to control how the work is used and to derive financial benefit from its reproduction, distribution, performance, and adaptation. These rights are transferable and are typically limited in duration.
2. Moral rights, by contrast, are personal and non-economic. They are concerned with the author's connection to their work and serve to protect the author's honour and reputation. These rights are generally non-transferable and exist independently of any economic interest in the work.

Economic rights

Economic rights are the ones which are more commonly infringed upon. In respect of economic rights, the copyright owner of a literary, dramatic or musical work or artistic work (CA Part III category) generally has the exclusive right to:

• publish or reproduce the work in a material form
• perform the work in public or communicate it to the public
• make an adaptation of the work
• enter into a commercial rental arrangement for the work

or authorise another party to do so in each case.

For other subject matter (CA Part IV categories), the exclusive rights include the exclusive right to:

• make a copy of the sound recording or film
• cause the sound or film to be heard in public or otherwise communicate it to the public
• enter into a commercial rental arrangement in respect of the sound recording
• make a film or sound recording of a TV or sound broadcast, copy it, and re-broadcast it or otherwise make it publicly available.

In respect of printed editions of published works, the rights are limited to making a facsimile or authorising another party to do so.

Moral rights

The creator or author retains moral rights even after the economic rights in the work have been transferred. They are personal rights which cannot be sold. They give the author or artist the right to be credited as the creator of a work, and to restrain derogatory treatment of it which might affect their honour or reputation.

Traditionally, copyright laws in Australia were only concerned with economic rights. They did not prevent work being distorted, mutilated, or used in an insulting, prejudicial or offensive way. Nor did they protect a person's right to be recognised as the creator of the work. In 2000, the Federal Government passed the Copyright Amendment (Moral Rights) Act 2000 (Cth), as an amending Act to the CA.

The CA specifically provides for three moral rights:

• the right of attribution - an author’s right to be identified as the author of a work [CA ss.193-195AB]
• the right to take action against false attribution by another party [CA ss.195AC-AH]
• the right of integrity - the right to object to derogatory treatment of a work which prejudicially affects the author's honour or reputation [CA ss.195AI-AW].

It is important to note that the moral rights of an author of a work are in addition to any other rights in relation to the work. Furthermore, moral rights in respect of a work are not transmissible by assignment, by will, or by devolution by operation of law.

With the exception of the right of integrity in film, moral rights normally last as long as the author’s economic rights. Authors can consent in some circumstances to an act or omission which constitutes a breach of moral rights [CA ss.195AW, AWA and AWB]. There is no scope for an enforceable generalised waiver outside the scope of these provisions.

Only individuals can possess moral rights. Thus, for example, where a body corporate was the producer of a film, only the director or screenwriter could exercise moral rights. It also means that an Aboriginal clan that traditionally owned a design or painting could not exercise moral rights if that painting was shown in a derogatory manner, without designating or deferring that right to an individual member.

How long does Copyright protection last?

The duration of copyright varies according to the type of material and whether it has been made publicly available. For most literary, dramatic, musical, and artistic works, copyright lasts for 70 years after the author’s death. For sound recordings and films, it typically endures for 70 years from the date they are made public, while television and radio broadcasts are protected for 50 years from the date of first broadcast. Once this period expires, the material enters the public domain, where it may be used freely by anyone without the need for permission or payment.

To use copyrighted material during the protection period, third parties must usually obtain permission from the copyright owner or a rights management organisation. This use often involves the payment of royalties.

In addition to economic rights, authors retain moral rights, which include the right to be credited, the right to object to false attribution, and the right to prevent derogatory treatment of their work. These rights persist even if the economic copyright is transferred to another party, although they may be waived through a written agreement in certain circumstances.

Who owns the copyright?

The basic rule is that the author or creator is the first owner of copyright [CA s.35(2)]. But the rights pertaining to copyrighted creations can also be transferred to other natural or legal persons. Hence, major global music and recording companies such as Warner Bros and Sony Music can own and exploit the copyright to creations which were created and performed by artists, authors and performers. Copyright ownership can also be decided by agreement. If there is no agreement, the rules in the CA apply. There are some exceptions to the general rule of ownership, and these are briefly outlined below.

Joint ownership

Copyright in a work can be held jointly where the individual contributions of each creator cannot be distinguished. A group of people writing/preparing a play would be an example. In such cases, the CA assumes that each creator has an equal share of rights in the creation. The phrase “work of joint authorship” is defined in CA s.10(1) to mean “a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors”.

Accordingly, a joint owner must obtain the permission of all other joint owners to exercise their ownership rights; no single creator can exercise rights without the consent of the other(s). However, the share can be varied if all joint owners agree that some have contributed more than others [CA s.10(1)].

In all situations where a group of people are participating in a collaborative project, it is advisable to set out a written agreement clarifying questions of ownership and the rights and conditions of exploitation of any work produced.

If different parts of a work, such as the music, lyrics or choreography of a play, can be clearly identified as the work of different individuals, copyright in each part resides with each individual who created that part.

Commissioned work

The copyright of a commissioned work ordinarily remains in the author of a “commissioned” work or other subject matter, subject to any agreement made between the parties as to assignment or other dealing with copyright: there are limited exceptions for commissioned photographs, portraits and engravings [CA s.35(5)], and for commissioned sound recordings and films [CA s.97(3), 98(3)].

The exceptions are made if the commissioned work is a portrait, drawn or painted, or a photograph or engraving. The copyright in a work falling into any one of these categories is owned by its commissioner. The artist still retains their moral of integrity and a right of restraint - that is, the right to prevent the work being used for any other purpose than that for which it was originally commissioned [CA s.35(5)].

To avoid any problems, a commissioner and a creator should, as a first priority, negotiate a written agreement with regard to copyright ownership. The creator of the work should be satisfied that payment adequately compensates them for producing the work and relinquishing rights over it.

Journalist's copyright

Section 35(4) of the CA provides for a division of ownership of copyright between the journalist authors of works and their employers. However, the journalist’s copyright provisions only apply to the print media, where a work is made by the author under the terms of their employment by the proprietor of a newspaper, magazine or similar periodical. In such a case the author is the owner of the copyright only in so far as the copyright relates to reproduction of the work for inclusion in a book, and reproduction of the work in the form of a hard copy facsimile made from a paper edition of an issue of the newspaper etc, but not including reproduction by the proprietor for a purpose connected with the publication of the newspaper and so on.

Employee authors

The normal rule is that the copyright in works created by employee authors in the course of their employment remains with their employer [CA s.35(6)]. There are, therefore, two questions that need to be answered: first, is an author employed pursuant to a “contract of service” as distinct from the independent “contract for services”; and second, is the work in question made pursuant to the terms of their employment? In the case of an independent contractor, the copyright would rest with the contractor. For example, if a graphic designer is employed full-time by a marketing agency under a contract of service and creates a company logo during their working hours, the copyright in that logo belongs to the agency. However, if the same designer were hired as a freelance contractor under a contract for services to create a logo for the agency, the copyright would typically remain with the designer unless there is a written agreement stating otherwise.

See Oceanroutes (Australia) Pty Ltd v M C Lamond [1984] AIPC 90-134; Redrock Holdings Pty Ltd v Hinkley [2001] VSC 91; (2001) 50 IPR 565. See also University of Western Australia v Gray [2009] FCAFC 116, in which the absence of specific terms relating to employee research obligations in contracts of employment caused the court to find for Professor Gray. The HCA refused the University special leave to appeal.

Crown copyright

Copyright in any original work created or first published by or under the direction or control of the Crown belongs to the Crown. In this context, the Crown refers to all Federal, State and Territory government departments and some statutory authorities. Special rules govern the length of time the Crown can retain copyright. A compulsory licence scheme authorises the Crown to exercise any of the rights of a copyright holder on subject matter if such exercise is “for the services of the Crown” [CA ss.182B-183A].

Crown copyright has a very wide scope. For example, the copyright of a school text published by the Department of Education would belong to the Crown, even if no payment had been made to its author. A person producing a work for a government department or working on a government-funded project should ensure that copyright ownership is clear before beginning work. Government departments have a tendency to assume total ownership of copyright or tacitly ignore the issue [CA ss.176-179].

It is unclear as yet whether prisoners own copyright in artworks or other creative works they produce in jail. If they use materials provided by the prison, their works may be considered as produced under the direction or control of the Crown. On the other hand, if the prison exercised no creative control over the artist’s work, it is arguable that the prisoner retains copyright. This issue has not yet been tested before the courts.

In respect of 'equitable' ownership of copyright between the Crown and the individual, see Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 (the 'Spycatcher' case).

Can copyright be transferred or licensed?

Copyright is private property. It can be bought, sold, resold, licensed or willed. Rights intrinsic to copyright can be categorised in the ways listed below.

Assignment of copyright

An assignment is a transfer of the exploitation rights of copyright. It enables the creator of an original work to sell or transfer their copyright in all or in part to another individual or corporation.

When a right is assigned, the assignor has no power to control the way the work is exploited unless by contract with the assignee. Copyright is personal property and is transmissible by assignment, by will and by devolution by operation of law [CA s.196(1)]. An assignment may be unlimited, giving the purchaser rights for all purposes throughout the entire life of the copyright. An assignment may be limited, that is, apply only in relation to a limited part of the rights under copyright [CA s.196(2)], or to a period of time, or to a specific purpose, or to a certain region or territory. The assignment (whether total or partial) does not have effect unless it is in writing, signed by or on behalf of the assignor [CA s.196(3)]. It is possible to make an agreement in relation to future copyright to assign such copyright to another person [CA s.197].

It is possible to make an agreement to assign the copyright in works not yet created. For example, an aspiring musician may make an agreement with a record company to assign the copyright in all works they will create in the next five years. Such assignments should be avoided because they are rarely made in the interests of the creator. Aboriginal painter Albert Namatjira assigned all his copyrights in his work to a publishing company and, as a consequence, his surviving family does not benefit from the income his work generates. Note that there is the possibility that inequitable or unfair assignments of copyright may be treated as being in restraint of trade. In the United States, artists have successfully taken record companies to court over this issue.

Licensing of copyright

In contrast to assignment, a licence arrangement may involve nothing more than a bare permission to do an act in relation to a work or subject matter that would otherwise be an infringement. But licences granted by a copyright owner are binding on successors in title of the grantor to the same extent [see CA ss.196(4) and 197(3)]. A licence may be verbal or in writing or implied by the conduct of the copyright holder; it may cover any aspect of the copyright; it may be exclusive, sole, or non-exclusive. But an implied licence can result in confusion and thus litigation over the scope and limits of the implied licence. See Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd [2005] FCAFC 144; (2005) 22 ALR 569.

An exclusive licence gives its holder the exclusive right to do certain things with the work concerned. No one else, including the copyright holder, will then be able to use the photographs for this purpose. Such a licence can be limited to specific purposes, for certain territories or for specified time limits. To be fully effective, an exclusive licence must be in writing and signed by the copyright holder. See Flashback Holdings Pty Ltd v Showtime DVD Holdings (No 6) [2010] FCA 694.

A non-exclusive licence gives its holder the right to do certain things, but does not prevent the copyright holder from issuing licenses to others to do the same things. A non-exclusive licence does not have to be in writing and can be implied from the conduct of the copyright holder. A creator of a work would, however, be strongly advised to issue a written licence.

Preservation of moral rights

It is important to note that, irrespective of the nature of the licensing or assignment agreement, the moral rights of the creator of the work still exist, since the “the moral rights of an author of a work are in addition to any other rights in relation to the work” [CA s.192]. Moral rights in respect of a work are not transmissible by assignment, by will, or by devolution by operation of law [CA s.195AN(3)].

What constitutes an infringement of copyright?

The copyright in a literary, dramatic, musical or artistic work or recordings, films or broadcasts “is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia, of any act comprised in the copyright” [CA ss.36(1) and 101(1)].

Sections 37-39 and 101-102 add to the generality of the above statement by identifying infringements by virtue of:

• unlicensed importation of copyright-protected goods for sale and hire
• sale and other dealings
• permitting a place of public entertainment to be used for the performance of the work
• infringing copies made by photocopying machines in libraries and archives.

Generally, copyright is infringed if a copyright-protected work is used without permission, in one of the ways exclusively reserved to the copyright owner.

There are some situations in which copyright material can be used without permission, either for free or on other terms, which serves as a defence against charges of infringement. One of these is the “fair use” defence.

A copyright owner is entitled to commence a civil action in court against someone who has infringed his or her copyright, and may be entitled to various remedies.

Some infringements of copyright - generally those that involve a commercial element - are also criminal offences.

Infringement: the 'substantial part' requirement

Under Section 14(1) of the CA, the infringing act must be done in relation to a “substantial part” of the copyright work or subject matter. The reproduction or other act need not be done in relation to the whole work in order for infringement to occur. Infringement can occur even if only part of a copyright-protected work is reproduced or otherwise used. However, copying an insubstantial part of a work may not amount to infringement. The key question is whether the portion taken constitutes a substantial part, which is ultimately a matter for the courts to determine, based on the quality and importance of the part copied rather than its quantity. For example, imagine a songwriter creates a unique melody that forms the emotional core of a song. If another artist copies just that melody and uses it in a new track, even though it is only a short segment of the original work, it may still be considered a substantial part because of its originality and significance. On the other hand, using a generic two-note rhythm that appears briefly in the background would likely be viewed as insubstantial and not amount to infringement.

There is no precise quantitative or percentage test for a “substantial part”. The test is “qualitative” rather than quantitative: even a reproduction of a very small amount of the work could be substantial if the part was critically important. The quoting of a short passage from a long work may infringe copyright if the passage is a paragraph which neatly sums up all that has preceded it. A substantial part may be one of the underlying components or “sinews” of a work rather than a simple block or section of it, such as a few pages or a few bars.

See EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47. In Milpurrurru v Indofurn Pty Ltd (1994) FCA 1544 [1994] FCR 240; 130 ALR 659, von Doussa J accepted that there were four major matters to be taken into account in deciding whether copying is substantial (at FCR 260):

First, the volume of the material taken, bearing in mind that quality is more important than quantity; second, how much of such material is the subject-matter of copyright and how much is not; third, whether there has been an animus furandi on the part of the defendant; this was treated ... as equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour; fourth, the extent to which the plaintiff's and the defendant's (works) are competing works.

Indirect infringement of copyright - 'knowing or having reason to know'

Indirect infringement means dealing with unauthorised reproductions of works, rather than actually reproducing the material itself. Its main forms involve infringing copies being imported without the license of the copyright owner, or sold, hired out or otherwise made the subject of trade [CA ss.37-38 &102-103].

It is necessary to establish that the defendant “knew or ought reasonably to have known” that the article with which they were dealing was an infringing copy. Note the policy questions which arise where copies have been made lawfully abroad and the copyright owner in Australia seeks to prevent their importation. This raises the issue of parallel importation.

Parallel importation

Importing copyright-protected works for commercial purposes or dealing with such material without the approval of the copyright owner is an infringement of copyright. However, a mechanism exists for the importation of foreign published books, without the permission of the copyright owner, in limited circumstances - primarily where a foreign published book is not available in Australia within 30 days of the first publication. The result of this is that foreign publishers can continue to maintain their effective monopoly so long as they meet the demands of Australian readers. If the book is not made available within 30 days, the person wishing to import must place a written order for the book with the copyright owner: if this order is not fulfilled within 90 days, copies of the book may be imported for sale [CA s.44A].

Criminal offences involving copyright infringement

Generally, infringements of copyright that involve commercial dealings or infringements that are on a commercial scale are criminal offences. Under the CA, it may be an offence to:

• cause infringement on a commercial scale, even if the infringer makes no financial gain.
• make an article that infringes copyright for sale or hire or to obtain a commercial advantage or profit, or to sell or otherwise deal with such an article, sometimes with the intention of obtaining a commercial advantage or profit, in specified ways.
• import an article that infringes copyright for trade purposes, or to obtain a commercial advantage or profit.
• distribute an article that infringes copyright for trade purposes, or to obtain a commercial advantage or profit, or for any other purpose that prejudicially affects the copyright owner.
• possess an article that infringes copyright, for specified commercial purposes, including for distribution to obtain a commercial advantage or profit or in a way that prejudicially affects the copyright owner.

It may also be a criminal offence to:

• make or possess a device that is to be used to make infringing copies of a copyright-protected work.
• advertise the supply of infringing copies of copyright material.
• cause the public performance of some copyright material at a place of public entertainment, with the result that copyright in the material is infringed.

There are several categories of criminal offences that apply to copyright infringement cases. Sometimes, the matter can go to court as an indictable or summary offence. Indictable offences are the most serious and can be tried before a jury. Whether an offence is an indictable or summary one depends on the state of mind of the alleged offender. For the third category of offences, “strict liability offences”, the state of mind of the alleged offender is irrelevant - it is enough if they do the acts that constitute the offence.

Limitations on rights: defences and 'Fair Dealing'

The CA includes several provisions that permit the use of copyright-protected works, either freely or for a fee, without the need for the copyright owner’s authorisation. These exceptions apply in specific contexts, such as use by educational institutions, libraries and archives, judicial proceedings, and government use. They also cover public performance or display and what is known as “fair dealing”.

The most significant exceptions fall under the category of fair dealing, which allows limited use of copyright material for particular purposes, including:

• research or study [CA s.40]
• criticism or review [CA s.41]
• news reporting [CA s.42]
• judicial proceedings or professional advice [CA s.43]
• parody and satire [CA s.41A].
• creation of accessible format copies for individuals with a disability, either by the person or on their behalf [CA s.113E].

Libraries can copy certain types and amounts of copyright material for their users, for their own collections, and for other libraries. To be entitled to copy and supply to users and to other libraries, a library’s collection (or part of it) must be accessible to members of the public. Libraries can use copyright material to maintain their collections or for archives, provided certain conditions are met. Amendments to the CA by the Copyright Amendment (Digital Agenda) Act 2000 Cth, extend the protection provided to a library (including libraries within educational institutions) in relation to copying and recording equipment it provides (such as photocopiers, scanners, computer terminals, and audio and video recording equipment), where this equipment might be used to infringe copyright.

For the purpose of fair dealing for research, “research” must involve a diligent and systematic inquiry or investigation into a subject in order to discover facts or principles. Importantly, the research must pertain to the research undertaken by the defendants themselves, not by a third party or customer [CA s.40]. In respect of the use of copyright material for the purpose of criticism or review, there must be “cognitive input” [CA s.41]. Regarding the use for news reporting, there must be a “report of a recent event” or at least a “productive or creative” analysis improving the original.

The meaning of “fair” is a question of degree. The CA sets out two situations deemed fair when dealing with copyright material for research or study and sets out guidelines which should be applied in other cases. First, for text or music published as an edition of ten or more pages, it is fair to copy 10% of the number of pages or one chapter, if the work is divided into chapters (for text material published in electronic form, it is deemed to be fair to reproduce one chapter or 10% of the number of words). Second, it is fair to reproduce an article from a newspaper or journal or more than one article, if each article relates to the same subject matter.

The CA lays down some factors for working out whether the copying is fair in relation to copyright material for research or study purposes, namely:

• the purpose and character of the copying (for example, whether for a course of study or a commercial activity)
• the nature of the work
• whether the work being copied is commercially and readily available
• the effect of the dealing on the copyright holder’s potential market for, or value of, the work (for example, making more than one copy is less likely to be fair than making one copy)
• in a case where only part of the work is copied, the amount and substantiality of the part copied in relation to the whole work.

Similarly, fair dealing can extend to providing access to copyrighted material for individuals with disabilities. In these cases, the primary objective is ensuring that people with disabilities can access the material in a format that meets their specific needs, whether directly or through a third party. Key factors in assessing fairness in this context include the purpose and character of the use, the nature of the copyrighted material, the impact of the use on the potential market or value of the material, and, if only part of the material is used, the amount and substantiality of the portion used in relation to the whole.

However, even with the exemption provided by the fair dealing provisions above, the copyright holder is still entitled to “sufficient acknowledgement” of the work [CA ss.41-42]. This means an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous, or the author has previously agreed or directed that an acknowledgement of his name is not to be made, also identifying the author [CA s.10(1)].

Copyright and Indigenous Knowledge

Indigenous art has often been commercially exploited in ways that are particularly offensive to indigenous peoples, who attach sacred significance to much of their art. In the past, indigenous artists and communities have had considerable difficulty taking copyright infringement actions.

A major problem with the effective and just protection of indigenous knowledge is that the creative work or knowledge must still fit in with western ideas of intellectual property in general and copyright in particular, and the legislative structure which develops from it, that is, a personal property right. But copyright mechanism which are intended to function in a trade-related, private protectionist context, do not adequately respond to the essential nature of traditional knowledge and cultural heritage. The CA and other intellectual property laws still require a copyrighted work or creation to be in material form, to belong to an identifiable individual or group of individuals, and to be independently created rather than derived. See Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082.

Since much indigenous creation is derived, that is, handed down from generation to generation in an oral tradition, and is owned communally, it does not comply with the definitions of copyright as enshrined in the CA. For example, there is no copyright protection for rock art because the original artists who created the work are no longer identifiable or they created it too long ago for copyright protection to continue to exist. Australian law does not recognise the communal rights of an indigenous community in works of art.

A further problem may arise in respect of transforming a work in an oral tradition into a material form, particularly where such transformation may be contrary to tradition and custom.

However, there have been a few successes by indigenous communities or their representatives. See Milpurrurru v Indofurn Pty Ltd [1995] FCA 1544; Bulurru Australia v Oliver (2000) 49 IPR 384. See also Australian Competition and Consumer Commission v Australian Dreamtime Creations, [2009] FCA 1545; (2009) 84 IPR 326. This case proceeded under ss.52 and 53(eb) of the then Trade Practices Act (Cth) (TPA), which prohibited making a false or misleading representation concerning the place of origin of goods. Mansfield J opined that 'to a reasonable group of persons who buy or may buy Aboriginal art, to describe a painting as "Aboriginal art" is to convey that it is painted by an Aboriginal person or a person of Aboriginal descent. If that is not explicit, as I think it is, it is clearly implied.'

And ACCC v Nooravi [2008] FCA 2012, which also proceeded under s.52 of the TPA.

Recently there have been proposals for legal change in this area. One proposal include the development of a separate set of copyright and other intellectual property laws designed specifically to meet the particular characteristics of indigenous and traditional knowledge. Another mooted proposal includes amending current copyright laws to allow for:

• extending copyright protection to oral works and non-assigned community works
• protecting traditional knowledge material through original and non-original database protection
• extending the moral rights provisions in copyright to traditional knowledge
• making greater use of international conventions on the protection of the rights of performers (for example, 1961 Rome Convention for performers, producers broadcasters, TRIPS, and the 1996 WIPO Performances and Phonograms Treaty)
• using a domain public payant system, under which royalties continue to be paid for the use of literary and musical works in the public domain
• using the droite de suite, a resale royalty under which an artist receives a share of the price paid for their original work from all sales subsequent to the first sale of the work by the artist.

The Resale Royalty Right for Visual Artists Act 2009 (Cth) (Resale Act), provides for a resale royalty of 5% to be payable on works of art with a minimum qualifying threshold of $1000 (inc GST). The royalty only
applies to commercial resales through art market professionals - that is essentially those conducted through and by art galleries and auctioneers. However, the Act does not draw a distinction between non-indigenous and indigenous art, with the word 'indigenous' appearing only once in the whole of the Act. Nor does it contain special provisions, protections or exemptions to give particular
redress to the perceived particular exploitation of indigenous artists.

The Resale Act enables the establishment of reciprocal resale rights with countries that have an active resale royalty system and provide benefits to Australian rights holders. Under these agreements, Australian artists are entitled to receive royalties when their qualifying artworks are resold in participating countries, while artists from those countries will similarly receive royalties for eligible resales of their works within Australia.

Copyright and the Digital Environment

The digital revolution has profoundly affected all areas of intellectual property law, with copyright protection being among the most significantly impacted. It has necessitated, and will continue to necessitate, fundamental changes to copyright law in order to keep pace with evolving technologies and communication practices.

Digitisation has dramatically increased the ease with which information can be created, modified, distributed, and, most notably, accessed. It has enabled a new medium through which works can be disseminated to the public in a virtual, instantaneous, and real-time manner. As access to content becomes more widespread, the ability to monitor and enforce copyright protection diminishes correspondingly. As a result, enforcing copyright in the context of digital communications, particularly over the internet and at the end-user level, can be extremely difficult, and at times, virtually impossible. The proliferation of channels through which alleged infringement can occur further complicates enforcement efforts.

Legal issues relating to internet use, and the roles and responsibilities of internet service providers (ISPs) can generally be categorised into two broad areas: the publication and dissemination of online content, and the sale of goods and services via the internet, commonly referred to as e-commerce. Both areas give rise to a range of legal considerations, including questions of ownership and control over published content, particularly in relation to copyright and other intellectual property rights. They also involve compliance with consumer protection laws, adherence to content classification requirements, and the protection of individual privacy, especially regarding the collection and handling of personal data. Additionally, the regulatory framework governing e-commerce includes both legislative provisions and principles derived from common law, which apply to online contracts, advertising standards, and business conduct.

Access to the internet and the distribution of online content typically involve three distinct types of parties, each with different legal responsibilities. First, internet content providers are the individuals or organisations responsible for creating the material that is made available online. Second, internet content hosts provide the digital infrastructure, such as websites or platforms, where this content is stored and accessed, and they often retain some control over what material is published. Third, internet service providers (ISPs) supply the technological means through which content is transmitted to end users, enabling it to be accessed, viewed, or downloaded by the public. The legal liability of each party may vary depending on their role and the nature of the content in question, particularly where issues such as copyright infringement, unlawful material, or breaches of consumer and privacy laws are concerned.

Use of images on the internet: scanning, uploading, and downloading

Scanning an image and producing a digitised version constitutes a reproduction of the original work. Uploading that digital version to a website or distributing it via email amounts to communication of the work to the public. Under the CA, both reproduction and communication are exclusive rights held by the copyright owner, and both generally require the owner’s permission. Downloading an image or even part of an image from the internet may also infringe copyright if the portion copied is considered a substantial or important part of the original work. Importantly, the focus is on the image itself, not the website or platform on which it appears. Modifying or incorporating a digital image into a new work can also infringe copyright if a recognisable and significant part of the original is used without authorisation. Additionally, such actions may breach the creator’s moral rights, including the right to attribution and the right of integrity, if the image is not properly credited or is altered in a way that is prejudicial to the creator’s honour or reputation.

Time-shifting: recording from TV and radio for later private use

It is permissible to record television or radio broadcasts for the purpose of viewing or listening at a more convenient time, a practice known as time-shifting. This exception, outlined in Section 111 of the CA, applies only when the recording is made solely for private and domestic use. Any use of the recorded material beyond personal consumption, such as selling, broadcasting, or showing it publicly, constitutes copyright infringement. Furthermore, the legal protection applies only if the recording was made for the genuine purpose of delayed viewing or listening; archiving content for repeated long-term use may fall outside the scope of this exception.

“Space-shifting” and “Format-shifting”

Individuals are permitted to make copies of lawfully owned sound recordings and certain other materials for private and domestic use under specific conditions. This includes both space-shifting and format-shifting. These exceptions are strictly limited to non-infringing originals and apply only for personal use by the owner of the material. The law does not allow copies to be sold, given to others, broadcast, or used in public or commercial contexts. Additionally, format-shifting is only allowed if the individual has not already made a copy in the new format and retains the original. Importantly, these rights do not extend to pirated or illegally downloaded content. The intent of these provisions is to enable consumers to use their legitimately owned media across different devices and formats without breaching copyright, while still protecting the rights of content creators and rights holders [CA, ss.109A and 110AA].

Technological Protection Measures (TPMs)

There are both civil remedies and criminal penalties for manufacturing, importing, or commercially dealing in devices or services designed to circumvent technological protection measures (TPMs), such as decryption tools. TPMs are used to control access to or prevent the copying of copyright-protected content. The CA provides limited exceptions that allow certain uses of circumvention devices or services, such as those made by libraries, educational institutions, government agencies, and software developers for purposes permitted under specific conditions. The law also imposes penalties for the manufacture or distribution of devices intended to enable the unauthorised reception of encrypted subscription broadcasts, such as pay TV signals.

As a result of the US-Australia FTA, amendments were required to amendments to the CA to include the following provisions:

• sanctions against the use, manufacture and supply of devices designed to circumvent TPMs that control access (whether or not that access control is for the purposes of inhibiting or preventing infringement)
• sanctions against the use of a circumvention device or service to get access to copyright material
• considerably restricted exceptions, rather than 'permitted purposes', relating to the supply or use of a circumvention device or service
• introduction of legislative or administrative proceedings to greater control the conditions under which a person may be allowed to circumvent a TPM in order to make non-infringing uses of copyright material.

Rights management information

Amendments to the CA in 2000 introduced sanctions against tampering with electronic rights management information and against distributing or commercially dealing with material whose rights management information has been tampered with. (Rights management information is information attached to or embodied in digital material that identifies the material and its author or copyright owner, or which relates to the terms or conditions of use of the material.)

Website design

The design and/or layout of a website can be protected by copyright. This is quite separate from copyright ownership of the various components of the site, such as the text, images and sound. The future development of a website requires that rights to the website design be considered. The website developer usually owns copyright in the site. They may assign or give permission to allow for modifications to the design in the future.

When a person uses content that they do not own - that is, that they have not created personally - they should identify the copyright owner and seek permission to use the material. If the owner is not identified on the website, it may be possible to discover their identity by sending an email to the website or to the webmaster responsible for the site where the material was obtained.

Linking to another website

Before linking to or framing a third-party website, a person should review it for any prohibition on linking or framing. If linking is permitted with conditions, those conditions should be adhered to, as you may be making representations about another site inadvertently.

Hypertext linking to or framing a third-party website that includes copyright-infringing material may constitute an endorsement or re-publication of the infringing material and expose the website owner to liability under copyright law. Hypertext linking to pages deep within other sites and the use of frames on a website can raise issues of liability under copyright and trade practices legislation. See Cooper v Universal Music Pty Ltd [2006] FCAFC 187; (2006) 156 FCR 380.

Internet Service Providers (ISPs)

In considering whether the Internet service providers (ISPs) are responsible for copyright infringement committed by their users (such as when someone illegally downloads movies or music), courts have considered whether the ISP:

• had the power to stop the illegal activity (for example, blocking downloads or access).
• had a close relationship with the person doing the infringing (like controlling their actions).
• took reasonable steps to try and stop the copyright infringements. This would depend on what the provider could do to prevent the infringement. For instance, they could block access to certain websites or warn their users.

It is generally accepted that ISPs do not control how users utilize the internet or which software they use to share files. Furthermore, they do not have the authority to edit or delete content shared online. The only significant power they possess is the ability to terminate a user’s internet access, and this alone may not be sufficient to hold them accountable for users’ actions. Copyright holders may seek specific remedies against ISPs when users are found to be infringing copyright. Under Section 115A of the CA, a court may grant an injunction requiring ISPs to block access to infringing material, without the need to prove any fault on the part of the provider.

Roadshow Films Pty Ltd & Ors v iiNet Limited [2012] HCA 16, was significant for its impact on copyright law in the digital environment, and was the first Australian case to consider the liability of ISPs for authorising copyright infringements of its users. The High Court focussed on the factors set out in CA s.101(1A) in respect of the core issue of authorisation liability, namely:

• whether iiNet had the power to prevent the doing of the act concerned;
• the nature of the relationship between the iiNet and the person who did the act concerned;
• whether iiNet took any other reasonable steps to prevent the infringements.

The High Court held that iiNet had an insufficient degree of power over its users in relation to the downloading of the infringing content. More specifically, it had no technical power at its disposal to prevent its customers from using the 'BitTorrent' system to download the studios' films. iiNet did not control the 'BitTorrent' system, nor the choice of its customers to use it. Nor could it modify the 'BitTorrent' software or remove the studios' films once made available online.

Rather, the extent of iiNet's power was limited to an indirect power to prevent primary infringement by terminating the internet access of its subscribers. Accordingly, the Court found in favour of iiNet.

The Federal Court handed down another controversial decision in Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317. Perram J ordered the ISPs provide discovery of account holder details, however stayed this order subject to Dallas Buyers Club providing the Court with a copy of the letter they proposed to send infringers. While the decision in Dallas was clouded with controversy, the shift in position was a small step, and reasonably foreseeable in lieu of comments made in the Roadshow v iiNet case.

The Copyright Amendment (Online Infringement) Act 2015 (Cth) inserted a new s.115A into the CA to allow for an injunction requiring ISPs to block infringing material located outside of Australia, without the need to establish any fault on the part of the provider.

What remedies are available against Copyright infringement?

Various remedies are available to a copyright holder whose rights have been infringed. These include both equitable and statutory remedies, primarily outlined in the CA. The key remedies are summarised below:

Injunction

This equitable remedy usually requires the defendant to refrain from a particular course of conduct; rarely, it may require the defendant to carry out a particular act. The source of the court’s power to award an injunction is CA s.115(2). The same equitable considerations apply as for the grant of an injunction in equity. The injunction may be interlocutory or final. The court will grant an interlocutory injunction where there is a “serious question to be tried”. It is an invariable condition of the grant of an interlocutory injunction that the plaintiff should give an undertaking to pay damages to the defendant in the event that a final injunction is not granted at trial.

Damages

The common law remedy of damages is also provided for in CA s.115(2), with provision for aggravated damages in s.115(4) and conversion damages in s.116. The purpose of damages is to compensate the plaintiff for the loss which he or she has sustained as a consequence of the defendant's contravention of their right. See Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1995) 54 FCR 240; 130 ALR 659.

Account of profits

Again, this is provided for in CA s.115(2). This is an equitable remedy which requires the defendant to give up the profits they have made from the unauthorised use of the plaintiff's property. The plaintiff's loss (the basis for damages) may be either less or more than the defendant's gain (basis for account of profits). Note that the estimation by the court of an account of profits may be a difficult exercise, particularly when the defendant legitimately seeks to offset against its direct profit, its general overheads and other expenses related to making the profit.

Orders to deliver up

Courts with equitable jurisdiction have an inherent power to order a defendant to deliver up articles made in contravention of the plaintiff's intellectual property rights.

Anton Piller orders

These ex parte orders entitle the plaintiff and their solicitors to enter the defendant's premises in order to inspect and remove any material relevant to the case. This can be done without prior notice to the defendant. Courts will require undertakings from a plaintiff as to damages in the event that there is improper execution or disregard of the defendant's rights. Plaintiffs must advise the defendants of their rights to seek legal advice before complying with the order, and also serve the defendant with a statement of claim.

Mareva injunction

This is another ex parte order which restrains the defendant from disposing of or removing from the jurisdiction assets that would otherwise be available to satisfy any subsequently obtained judgment for damages.

Groundless threats

A defendant may restrain the making of 'groundless threats' of court action and may also recover any damages they may suffer as a result of the threats [CA s202]. Thus a defendant may be prevented from going out of business by the mere making of a threat by a powerful plaintiff and the consequent high legal costs.

Useful contacts and organisations

A number of organisations either collect copyright fees, or deal extensively in copyright issues, including assistance with getting copyright clearances arranged.

Australian Copyright is administered by the Commonwealth Attorney-General's Department.

Australian Copyright Council (ACC)

The ACC is an independent, non-profit organisation, founded in 1968. It represents the peak bodies for professional artists and content creators working in Australia's creative industries and Australia's major copyright collecting societies. The ACC is also a major source of advice and assistance. Its staff includes specialist lawyers who can provide free advice on copyright and related areas of law. It also publishes information sheets on particular aspects of the law for specific user groups.

Website: www.copyright.org.au

Copyright Agency Limited (CAL)

The Copyright Agency collects fees and distributes royalties to its members who are creators of copyright material for the reuse of text and images. It manages educational copying schemes, Commonwealth, State and Territory copying schemes, the Resale Royalty for Visual Artists scheme, and special provisions for institutions assisting people with print disabilities. CAL also has agreements with international affiliates to licence the use of foreign content in Australia, and collect licence fees for Australian content used overseas.Since 2012, CAL has combined with Viscopy, which licences images of artworks, have joined forces. Viscopy's members are visual artists., and can help collect money from outside Australia.

Website: www.copyright.com.au

Audio-visual Copyright Society - "Screenrights"

This Society operates in similar fashion to CAL, but deals with licensing:

• Educational institutions in Australia and New Zealand, enabling them to copy broadcast material, and put these copies on internal networks or email them to staff and students
• Pay television, mobile phones, IPTV and other services that retransmit free to air broadcasts
• State and federal government departments, enabling them to copy from television and radio.

Website: https://www.screenrights.org

Australasian Performing Rights Association (APRA) / Australasian Mechanical Copyright Owners' Society (AMCOS)

APRA is an association of authors, composers, music publishers and other music copyright owners. APRA distributes money collected through licensing radio and television stations, as well as most hotels, clubs etc where recorded music is played to the public. AMCOS is made up of music publishers. AMCOS administers on their behalf the recordings of music and music on film or video. It also operates a licensing system for schools to allow copying of sheet music. AMCOS also has reciprocal arrangements with overseas organisations.

Website: http://apraamcos.com.au

Phonographic Performance Company of Australia (PPCA)

PPCA performs a similar function to APRA on behalf of copyright owners in sound recordings. PPCA is a non-profit organisation that provides licences to Australian businesses to play recorded music in public. The net fees are distributed to record labels & registered Australian artists. The licences issued by PPCA cover public performances and broadcasts.

Website: www.ppca.com.au

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