Infringement of copyright

Contributed by Annette Rubinstein and Fitzroy Legal Service and current to 1 September 2005

ACTIONS WHICH ARE EXCLUSIVE

RIGHTS OF THE COPYRIGHT OWNER

If you do any of the things which 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 Act applies. The following section deals with practical issues that often arise in deciding whether an 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 need not be deliberate; if you have been exposed to the original work, do not consciously remember it, but unconsciously copy it, the copy will be a reproduction. A famous example was 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.

A reproduction need not be made directly from the original work. For example, if you make a copy of a photograph of a picture, it will be a reproduction of both the photograph and the picture. Copying spare parts has been held to be a reproduction of the plans from which the spare parts were made. Similarly, you can reproduce a drawing of a cartoon character by making a toy based on the character. In Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49; (1999) 45 IPR 353, 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.

If you copy characters and plots from a work of fiction or drama but use different language to tell the story, you may infringe the original work. For example, the Disney “book of the film” of The Jungle Book does not use the same language as the stories by Rudyard Kipling, but is still recognisable as a reproduction of a substantial part of Kipling’s book. Taking the underlying idea of a book (for example, a child brought up by wolves) but not copying the way in which Kipling developed the character of Mowgli or specific incidents from the Jungle Books would not be a reproduction of those books. The distinction between the two situations, like much in copyright law, is not clear-cut, and it is not always certain whether a derivative work infringes copyright. Writing a completely original story featuring Mowgli would probably not infringe copyright, but would be likely to land the author in other legal trouble (such as falsely representing a connection with the owner of the copyright in the other works).

Parodies of copyright works are another uncertain area. While there are many reported cases where copyright owners have not succeeded in their claims that a parody of their work infringes copyright in it, on the ground of insufficient resemblance between the original work and the parody, there are some cases involving artistic works and films where infringement has been found. An effective parody of a commercially successful work is likely to result in at least the threat of legal action.

Have I performed copyright material in public?

A performance may be treated as a public performance even though no charge is made for admission, or the audience is limited to a particular group. For example, it has been held that playing music to the workers in a factory was a public performance. For this reason, non-commercial performances, such as school concerts, or video nights for fund-raising purposes in private premises, can be public performances.

Has the infringing act involved a substantial part of the work?

Doing an act in relation to a substantial part of a work (or other copyright material) is treated the same way as doing the same act in relation to the whole work (s.14). The Copyright Act does not define “substantial part”. While there are many cases dealing with what is “substantial”, it is difficult to generalise from them. Whether part of a work is substantial depends both on how large it is in proportion to the whole work, and on how important that part is. A reproduction of approximately a quarter of a computer program has been regarded as reproduction of a substantial part of it. 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 which are exclusive rights of the copyright owner without the owner’s consent, you will infringe that 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 have the power to do so. There have been a number of cases where suppliers of copying equipment (such as cassette recorders) have been sued. The copyright owners have usually failed because the equipment could also be used to copy material which is not copyright.

SALE, DISTRIBUTION OR IMPORTATION

If an article (such as a record or book) was made in Australia, and you know, or ought to know, that the making of 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 (s.38).

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 selling or hiring it out, distributing it commercially or exhibiting it by way of trade without the consent of the copyright owner. You will also infringe copyright if you sell or hire it out, distribute it commercially, or exhibit it by way of trade, even if someone else imported it. This applies even if the article was made overseas with the copyright owner’s permission. Importation for private use does not infringe (s.37, s.38).

There are important exceptions to sections 37 and 38 which allow the importation and sale of legitimate copies of sound recordings (CDs), computer software, and books, periodicals and sheet music in electronic form (e-books and similar products), 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.

LICENSING COPYRIGHT

An owner of copyright can permit or license other people to do things, such as copying the material, which would otherwise be an infringement of 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 owner’s conduct. For example, the author of a book of sample complaint letters grants buyers of the book an implied licence to copy individual letters for the purpose of making complaints (but not to reproduce the whole book).

There are a number of bodies which represent copyright owners in relation to licensing, and which are a useful first contact if you wish to reproduce copyright material. They are:

• Australasian Performing Rights Association (APRA) (broadcasting or public performance of musical works);
• Phonographic Performance Company of Australia Ltd (PPCA) (broadcasting or public performance of sound recordings and music video clips);
• Australasian Mechanical Copyright Owners Society Ltd (AMCOS) (recording or copying published music);
• Screenrights (rights in relation to film and television programs);
• Viscopy (reproduction of artistic works); and
• Copyright Agency Limited (CAL) (reproduction of published literary works).

Contact details for these organisations are given at the end of this chapter.

ACTS PERMITTED BY THE COPYRIGHT ACT

The Act provides that the following do not infringe copyright.

Fair dealing for research or study (s.40)

There are two ways of deciding whether copying is fair dealing for the purpose of research or study. Any copying for the purpose of research or study of a single article in a periodical, or a “reasonable portion” of any other work, provided the work is more than 10 pages long, is a fair dealing for the purpose of research or study. “A reasonable portion” means no more than 10 per cent of the total number of pages. If the work is divided into chapters, material must not be copied from more than one chapter.

The second way of establishing fair dealing is not restricted to copying any particular amount of the work (although the amount copied is relevant). Other relevant factors are the reason for the copying, whether the work could be bought in a reasonable time at an ordinary commercial price, and the effect of the copying on the value of the work. For example, it may be necessary to reproduce the whole of a short letter in a historical thesis in order to provide an analysis of the writer’s attitude to the matters discussed in the letter.

Fair dealing for criticism or review (s.41)

No quantities are specified to constitute fair dealing for these purposes. In some cases, it may be necessary to reproduce the whole of a work (such as a short poem) in order to criticize it. It is necessary to give a sufficient acknowledgement of the copied work, meaning a statement identifying the author and the work.

Fair dealing for reporting news (s.42)

The news must be reported in a newspaper, magazine or similar periodical, or by a film or broadcast. Adequate acknowledgement of the copied work must be given.

Computer programs (ss.47AB-H)

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;
• correction of programming errors; and
• security testing.

In all cases, the copy must be made from a legitimate not an infringing copy of the program. The copy must be made by or on behalf of the owner or licensee of the copy which is being reproduced. 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)

The reading or reciting in public, or the broadcasting of a reading or recital, of an extract of reasonable length from a published or dramatic work does not infringe copyright in that work. Sufficient acknowledgement must be made to avoid infringement. “Reasonable length” is not defined.

Buildings and public sculptures (ss.65 & 66)

Making a picture, photograph, film or television broadcast of a building, or of a sculpture which is in a public place, does not infringe copyright. If this were not the case, it would be almost impossible to take a street photograph without breaching copyright.

Copying of own work by artist (s.72)

The use by an artist of elements from his or her earlier work does not infringe copyright in the earlier work (which may have been assigned to another person) provided 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 Act authorising limited copying of copyright works by libraries and educational institutions. These institutions make information about such copying available to users and teachers.

Recordings of musical works and public performances of sound recordings

The Act provides that 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 owner of the copyright. There are similar provisions in relation to the public performance of published sound recordings. Further information about these statutory licences is available from APRA.

Other exceptions

There are a number of additional circumstances in which the Act authorises the reproduction of particular types of copyright material, such as chemical labels, or statutes and court judgments.

CONSEQUENCES OF INFRINGING COPYRIGHT

The copyright owner may bring legal proceedings against you in a state court (the Magistrates’ Court, the District Court or the Supreme Court) if the amount of damages sought is within the limit that court can award and there is a connection with the state (such as the infringement occurring there or the defendant living there). Legal proceedings may also be brought in the Federal Court and the Federal Magistrates 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 (a person who has been granted a licence to reproduce the copyright material which does not allow anyone else, even the copyright owner, to reproduce it as well).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 that it is the owner of the copyright unless the defendant denies this. The plaintiff also does not have to prove that the person named on the work as the author or publisher of that work was the true author or publisher.

A court may order you to stop infringing copyright, to give the copyright owner any infringing material, and to pay the copyright owner damages or the profits you have made from the infringement. If you did not know and had no reasonable grounds to suspect that you were infringing copyright, you will not be required to pay damages, but may still be required to pay any profits you have made. You may also be ordered to pay the copyright owner’s legal costs.

The same remedies may be granted against you if you do various acts described in section 116A of the Act which facilitate infringement of copyright material. These provisions are most relevant to computer software, CDs and DVDs. The prohibited acts include removing copyright information or methods of preventing copying from copyright material, supplying or importing material to which this has been done, and making, supplying or using a device in order to defeat protection against copying.

Copyright infringement and the other acts described above are criminal offences if you do them when you know, or ought reasonably to know, of the infringement. However, prosecutions for these offences are extremely rare, due to the difficulty of proving the relevant facts beyond reasonable doubt.