How can copyright rights be enforced?
A copyright owner can approach a person infringing copyright to seek redress. It is best to seek legal advice. Where enforcement is required it is generally done in the court system.
Injunctions
The owner of the copyright in a work or other subject-matter may obtain an injunction to restrain an infringement of copyright occurring or continuing.
Damages
A person whose copyright is infringed is entitled to damages as compensation for infringement. In the case of a blatant infringement, or where some particular benefit has accrued to the defendant, punitive damages may be awarded to a copyright owner. In determining the amount of damages for copyright infringement, a court may consider whether the infringement involved converting hardcopy material into digital form, as well as whether a stronger penalty would deter others from committing the same infringement.
A court may take into account the high probability of likely infringements in assessing damages in relation to commercial scale electronic infringements, such as peer-to-peer file sharing. A court may grant additional relief for these likely infringements. However, the plaintiff is still required to show that an initial infringement has occurred before he or she is able to raise likely infringements.
Account of Profits
Alternatively, the court may order payment to the owner of copyright of the profit made by the infringer as a result of the infringement.
Conversion damages
Where the infringement was deliberate, the Copyright Act also provides for the owner of the copyright in a work or other subject-matter to be in substantially the same position as if he or she owned the infringing copies of the material. Subject to the discretion of the court, there is a provision for a copyright owner to have any infringing copies of the material in the hands of the infringer (including any device used in making the copies) delivered up to him or her.
Customs
A notice in writing may be given to the Chief Executive Officer of Customs objecting to the importation of copies of copyright materials suspected to be infringing copies.
A Notice of Objection lodged by a copyright owner with the Australian Customs Service authorises a Customs officer to seize copies of infringing copyright material where that copyright owner has objected to their importation. A person giving such a notice is required to give a written undertaking that expenses for the seizure will be repaid. Where an objector has previously defaulted on an undertaking to repay expenses, the Chief Executive Officer of Customs may decide not to seize the infringing copies unless security has been provided. Once a notice is accepted, Customs may seize the copies believed to infringe copyright and hold them for a specified period to enable the giver of the notice to bring infringement proceedings in court.
Importers of copies that are non-infringing can counterclaim for damages arising from the infringement proceedings.
Contact details for the Australian Customs Service are:
Australian Customs Service
Customs House
5 Constitution Avenue
CANBERRA CITY ACT 2601
Tel: 1300 363 236
or 61 2 6275 6666
e-mail: iprights@customs.gov.au
http://www.customs.gov.au
Criminal provisions
The Copyright Act contains a number of criminal offence provisions. These include offences in aid of enforcement regimes for technological protection measures (TPM) liability, abuse of rights management information and broadcast decoding devices, unauthorised access to encoded broadcasts, piracy of books, computer software, sound recordings and films, infringements on a commercial scale and other actions that prejudice the economic rights of the copyright owner.
There are now three tiered offences for most offences in the Copyright Act. There are indictable, summary and strict liability offences, relating to copyright piracy. The tiered offences contain similar physical elements, but have different fault elements to reflect the offences’ different levels of seriousness. Only select offences are strict liability to ensure that certain legitimate activities of consumers and businesses are not criminalised. In determining a penalty, a court may impose higher penalties in certain circumstances for offences involving the conversion of hardcopy material into digital form.
The Copyright Regulations allow for infringement notices to be issued to persons alleged to have committed certain strict liability offences. This allows police to deal with suspected minor offenders without the need to summons a person to appear in court.