Copyright Infringement: What Does It Mean?

You have probably heard of the word ‘copyright’ before and you will probably recognise the copyright symbol © in books, posters and on television. But what does copyright actually mean under Australian law, what constitutes copyright infringement and what penalties will you attract for infringement? This article will provide answers to these questions and share a recent copyright infringement case in Australia.

What is copyright?

Copyright is a set of rights that allow their owner to control, and be paid for, uses made of the material in which the copyright subsists. It protects the expression of ideas in material form. Examples of copyright material, or works, include books, clothing designs, visual art, music, film, software and broadcasts. Material on the internet or on social media platforms (Facebook, Instagram, Youtube, Twitter) may also be copyright protected. Copyright under current Australian law normally lasts until 70 years after the author’s death, subject to the nature and type of the copyright protected material.

How are copyright materials protected?

The law governing copyright is the Copyright Act 1968 (Cth). As a federal law, the Act can be applied in all states and territories of Australia. The Act attempts to balance the creators’ interests by incentivising creators to produce more copyright material and the society’s interests in accessing such material.

The Act gives copyright protection to two broad categories of materials. The first category includes  original literary, dramatic, musical and artistic works, while the other category covers certain types of materials such as sound recordings, cinematograph films, television broadcasts and sound broadcasts,  published editions of works etc. Provisions as to copyright ownership, duration and protection may vary in each category.

It is also notable that Australia is a common law jurisdiction where case law also plays an integral role in copyright law, as it may guide the interpretation and application of the statutory provisions in specific cases.

Copyright protection is automatic in Australia because there are no formalities required and there is no system of copyright registration.

Infringement of copyright

Copyright may be infringed if one uses copyright material without the permission of its owner, such as unauthorised copying or distributing of copyright material,  unauthorised playing of films or music in public places, commercially trading pirated material etc.

In the case of Seafolly Pty Limited vs Fewstone Pty Ltd [2014], Seafolly Pty Limited (‘Seafolly’) sued Fewstone Pty Ltd, trading as City Beach Australia (‘City Beach’) for infringing Seafolly’s copyright in three artistic works. Seafolly and City Beach are two companies that design, manufacture and sell swimwear. Seafolly alleged that a substantial part of the three artistics works were reproduced without a licence on City Beach beachwear garments. At the final hearing, Seafolly won and the Court ordered that City Beach pay damages and be restrained from reproducing the copyright works.

Exceptions to infringement of copyright

The Copyright Act provides exceptions to copyright infringement to allow certain conduct which may otherwise be considered as copyright infringement. For example, a ‘fair dealing’ with copyright material in research, critiques, news reporting or parodies may be protected by such exceptions. Another example is private and domestic use – it may not be copyright infringement for one to record a TV show at home and watch it later.

Various factors need to be taken into account to determine whether a use of copyright material falls within the exceptions, such as the nature of the material and the manner of use.

Remedies

Copyright is enforced by commencing court proceedings in the Supreme Court or in the Federal Circuit Court. Akin to the Seafolly case, the author could seek compensation, payment of profits made by the infringer and court orders to restrain further infringement.

Conclusion

Copyright applies to a wide range of media in Australia and is recognised under the Copyright Act 1968 (Cth). Its law is by no means simple so you should seek legal advice on any copyright-related matter. Whether you are the author or the alleged infringer, contact our experienced legal team to discuss your options.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

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