When is copyright infringed?
Exercise of exclusive rights
The copyright in any work or other subject-matter is infringed when any act which the copyright owner has the exclusive right to do is done by a person in Australia who is not the copyright owner (or his or her licensee). Examples include when a work is published, reproduced or performed in public without the copyright owner's permission. This general rule is subject to a number of specific exceptions in the Copyright Act.
Authorising an infringement
The copyright in any work or other subject-matter is also infringed when any act which the copyright owner has the exclusive right to do is authorised to be done by a person in Australia who is not the copyright owner (or his or her licensee). For example, a person could be taken to have authorised a copyright infringement if they provide access to a photocopier and expressly or impliedly permit someone else to make infringing copies on it. In the online environment, providing links to infringing material may, in some circumstances, constitute authorisation of an infringement.
Substantial copying
It is not necessary for a whole work to be reproduced or for more than one reproduction to be made for an infringement of copyright to occur. An infringement of copyright occurs so long as a substantial portion of a work or subject-matter has been reproduced or other copyright use is made of it (eg it is communicated to the public). The test for what is a substantial portion is often a qualitative rather than a quantitative test. It is the quality or essence of what has been taken rather than the amount that is taken that will often determine whether the portion taken is 'substantial'.
What about photocopying, scanning or electric copying?
Photocopying or scanning a literary, artistic, dramatic or musical work is one of the more common ways of infringing copyright in works as it involves reproduction of the work. A large number of authors and publishers are members of a copyright collecting body called Copyright Agency Limited (CAL www.copyright.com.au). CAL is authorised to collect royalties for the photocopying of these works. A licence from CAL can be obtained for the photocopying of published literary works. Alternatively, the permission of the author or publisher should be sought.
CAL also handles some licences for copying of works in an electronic format. These licences deal with original electronic work and allow educational institutions to reproduce and communicate it to their staff and students. Note that the work must already be in an electronic form.
Importation and commercial dealings
The Copyright Act also makes certain other acts an indirect infringement of copyright. It is an infringement of copyright to import copyright infringing articles (ie pirate goods) into Australia for trade purposes. Commercial dealings with infringing or pirate articles also constitute an infringement of copyright. Infringing or pirate articles are items such as copies of DVDs and computer games that are made without legal authority or consent from the owner of the copyright material in them. There are also restrictions on importation of certain legitimate copyright goods into Australia without the permission of the copyright owner (‘parallel importation’).
Importation of books
The commercial importation of legitimate copies of books is permitted in certain circumstances. For example, books which are not published in Australia within 30 days of their first publication overseas can be imported without the permission of the copyright owner in the literary work or published edition. A person wishing to import books commercially without the permission of the copyright owner should seek legal advice before doing so.
Importation of sound recordings
The commercial importation of legitimate copies of sound recordings (including CDs and records) is generally not an infringement of copyright. However, if the copies were made without the consent of the copyright owner (ie they are pirate copies), the importation of those copies will infringe copyright. A person wishing to import CDs or records commercially without the permission of the copyright owner should first seek legal advice.
Sound recordings commonly record musical works which themselves have a copyright separate to the copyright in the recording. If the copyright in a musical work is infringed by the making of a copy, the importation will also infringe copyright in the musical work.
Importation of Computer Programs and e-Books and e-Journals
The commercial importation of legitimate copies of computer software or electronic books (including collections of works), electronic journals and electronic sheet music into Australia without the permission of the Australian copyright owner is generally not an infringement of copyright. The imported copy must have been made with the permission of the copyright owner in the country of manufacture. If the physical item or medium embodying the works in electronic form, (eg a CD-ROM or DVD) includes a film or television program of more than 20 minutes duration, it cannot be parallel imported. Note that downloading of copyright materials by computer from an overseas Internet site, which does not involve bringing of a physical item or medium into Australia, is not parallel importation. Downloading is an exercise of the reproduction or copying right of the owner of copyright in the materials concerned.
Place of public entertainment
It is an infringement of copyright to permit a place of public entertainment to be used for an infringing public performance of a literary, dramatic or musical work.
Circumvention devices and services
The Copyright Act provides civil remedies and criminal sanctions against the manufacture, importation and dealings in devices and services designed to circumvent any technological protection measure (TPM).
The Copyright Act also provides civil remedies and criminal sanctions against the circumvention of access control TPMs. These are TPMs that control access to the copyrighted work (eg by requiring the application of information or a process before access is granted). Examples include items such as a software lock or password protection measure. TPMs which prevent copying but do not control access to the work do not come within this definition, eg copy protection on a PDF file. There is no liability for the circumvention of TPMs which do not come within the definition of an access control TPM.
Devices which control geographic market segmentation are not TPMs. This means that consumers can circumvent the region coding devices on legitimate DVDs purchased overseas. It also allows for the continued availability of region free DVD players. There are exceptions to TPM liability in the Copyright Act 1968 and Copyright Regulations 1969. There is also a mechanism under the Copyright Regulations 1969 for the Attorney-General to create exceptions to TPM liability.
Unauthorised access to encoded broadcasts
There are two types of encoded broadcasts, subscription broadcasts (eg pay-TV) and encoded free-to-air broadcasts. There are remedies and sanctions against the manufacture, dealing in and use of broadcast decoding devices (a device which permits unauthorised access to an encoded broadcast). It is also an offence to access a subscription broadcast without authorisation, or distribute it without authorisation. The offence covers unauthorised access regardless of context and includes unauthorised access in a private home.
Electronic Rights Management Information
The Copyright Act provides civil remedies and criminal sanctions against the removal of electronic rights management information (ERMI). There are also remedies and sanctions against commercial dealing in copyright material where ERMI has been removed, if the person knows this was done without lawful authority. ERMI is information (or numbers or codes that represent the information) attached to or embodied in copyright material that identifies the work or other subject-matter, identifies the copyright owner, or contains any terms or conditions imposed on use of the copyright material. The definition of ERMI includes information that is separate from, but appears in connection with, or has at some point in time appeared in connection with, a copy of the work or other subject-matter.
Carriage Service Provider (CSP) Scheme
The purpose of the CSP scheme is to provide legal incentives for CSPs to cooperate with copyright owners in deterring the infringement of copyright, and limitations on the scope of remedies available against CSPs for copyright infringements that they do not control, initiate, or direct, and that take place through their systems or networks.
There are four separate types of activities undertaken by CSPs that are covered by the scheme:
- Category A – where the CSP acts as a conduit for internet activities through the provision of facilities for transmitting, routing or providing connections for copyright material.
- Category B – where the CSP caches copyright material through an automatic process.
- Category C – where the CSP stores copyright material on their systems or networks.
- Category D – where the CSP refers users to an online location using online information location tools or technology.
The CSP scheme is voluntary. The scheme does not affect whether or not a CSP is liable for infringement, but rather the consequences of that liability. Where a CSP complies with the conditions relevant to activities under scheme, a court cannot award damages against the CSP in relation to those activities.