Copyright infringement and intellectual property theft in copyright law

Gibbs Wright Litigation Lawyers practices in intellectual property disputes, including copyright infringement and trademark disputes. We do not assist with lodgements.

“Copyright” is a term that everyone has heard of and many use as an all-encompassing term with reference to intellectual property. However, few fully understand what copyright is and more often than not, the phrase “copyright infringement” is thrown around widely in relation to any situation where it is alleged that one party has taken advantage of or otherwise transgressed on another party’s intellectual property. But not every breach of intellectual property will fit the requirements of copyright infringement, and different laws will apply depending on the type of intellectual property being infringed, and the way in which the alleged infringement incurs.

What is a copyright?

Commonly confused with trademarks, copyrights are defined as a separate form of intellectual property that extends only to a certain class of creative works. In short, a “copyright” is a legal term describing a bundle of rights awarded to creators of original creative works. More specifically, a copyright is a form of protection provided to authors of certain creative products that are, in some way, fixed in a tangible medium of expression (i.e. the expression of an idea or concept in tangible form), in order to protect the ownership over the expression of that creation.

What is meant by a tangible medium of expression or an expression in tangible form?

It can be difficult to comprehend what is meant by the word “tangible” with reference to copyright law. However, this is nonetheless a fundamental concept in copyright law as no copyright will exist at all where there is no “tangible medium”; in other words, where the creation is not expressed in a “tangible form”. In essence, copyright law extends to any type of creative product that is sufficiently permanent or stable so as a permit the creative works to be somehow perceived, identified, reproduced, or communicated in another form for a “fixed” or non-transitory period. This often involves the expression of an idea through a particular medium, such as the presentation of literary works, music, films, pieces of art and computer software, and will also extend to the usage rights for those works. As such, the concept of “tangibility” is not so much concerned with the conventional definition of “tangible” as something being capable of perception by touch, but rather the permanency or perpetuity of the creative works in question.

What is the purpose of copyright law?

Copyright law has two primary purposes:

1. Moral purpose

Copyright law ensures that the creator or author of creative works retain the right to be identified and accredited as the original creator, thereby preventing other parties either from falsely asserting the credits or rights to a product they did not themselves create, or from distorting the creation so that the author’s intended expression of the works is misrepresented or altered.

2. Economic purpose

Copyright law ensures that the economic rights that flow from the presentation or communication of a particular creation remains with the creator until such time (if any) as the creator transfers those rights to another party, allowing the creator the opportunity to (a) decide the way in which the creation will be used/expressed, and (b) receive the economic benefits flowing from the creation.

Copyright law aims to ensure that the inherent moral and economic rights attaching to creative works are sufficiently protected.

What types of creative works can be copyrighted?

Some of the different types of creative works that will generally be allowed protection under copyright law includes:

  • Literary works
  • Musical works
  • Paintings
  • Sculptures
  • Databases
  • Photographs
  • Videos and general audio-visual works
  • Dramatic works and plays
  • Motion pictures
  • Sound recordings
  • Choreographic works
  • Technical drawings

The above list is not exhaustive. The exclusive rights granted by copyright law will vary depending on the nature of the material to be protected.

Direct vs. indirect copyright infringement

Copyrighted works can generally be infringed in one of two ways:

1. Direct infringement

Direct infringement involves the unauthorised use or reproduction of copyrighted works. Direct infringement occurs when a person substantially reproduces, unconsciously copies or otherwise distributes, displays or authorises the infringement of copyrighted work without permission or authorisation (i.e. copying a movie and making it available for illegal downloading by others as an online torrent).

2. Indirect infringement

Indirect infringement involves unauthorised dealings with copyrighted materials rather than directly infringing the works themselves. Indirect infringement occurs when a person other than the owner of the copyrighted work sells or imports the work (e.g. purchasing a particular piece of clothing with the reproduction of a specific brand name on it from overseas and bringing this item back to your home country to sell it).

What are the legal rights awarded to copyright owners and copyright users in Australia?

  For copyright owners  For copyright users  
  Your copyright material is automatically protected in Australia, and accordingly, registration is not required in order to protect your creative works (although registration is preferable). The Copyright Act 1968 (Cth) provide owners of creative works with a number of exclusive rights depending on the type of subject-matter referred to.    You are usually required to contact the copyright owner to get their permission to use the copyrighted work. For common use of copyright material, you will generally be able to seek a license to use the works. Only in very limited circumstances will a person be able to use copyrighted works without a licence or other permission (fair dealing).  

Defences to copyright infringement claims

If you are defending a claim for copyright infringement, there may be a number of defences available to you depending on the type of creative works the claim relates to, and the way in which the works were used. The Copyright Act 1968 (Cth) (the Copyright Act) lists a number of exceptions that allow for the use of copyright material without permission in limited circumstances, which may be used as a defence to an infringement claim. Some of these circumstances include:

  • Fair dealings for research and study
  • Fair dealings for the purposes of a parody or satire
  • Fair dealings to enable a person with a disability to access the material
  • Fair dealings for use in judicial proceedings
  • Fair dealings for criticism or review
  • Fair dealings for reporting the news
  • Fair dealings to obtain professional advice by a lawyer, trademark attorney or patent attorney
  • Fair dealings to enable interoperability with computer programs

The above list is not exhaustive. Whether or not a defence under the Copyright Act might apply will depend on the circumstances and evidence of each individual case.

What constitutes fair use or fair dealing?

Permitted use of copyrighted works for “fair use” is commonly referred to as the “Fair Use Doctrine”. The Fair Use Doctrine aims to allow for the use of copyrighted material without fear of retribution for specific purposes that, by reason of the purpose for which the material is used, is deemed “fair”. However, what is actually deemed “fair use” remains a controversial topic of debate.

The Fair Use Doctrine was first codified and has since flourished in the United States but is still not accepted as a complete defence in Australia. Rather, Australian copyright law has adopted a more purpose-specific system of defences that allow for the use of certain copyrighted materials for explicit and very limited purposes only, which is commonly referred to as the “fair dealing” system. Although the Australia’s “fair dealing” system is largely based on the American Fair Use Doctrine, albeit much more limited in its application, there is much debate as to whether Australia should follow the US and adopt the Fair Use Doctrine entirely, or alternatively allow for a broader interpretation of “fair use”.

In determining whether use of copyrighted material is deemed “fair”, the courts will take into consideration a number of factors, including:

  • The nature of the copyrighted material;
  • The purpose and character of the use of the copyrighted material;
  • The portion of the copyrighted material as a whole being used;
  • The effect that the use of the copyrighted material is likely to have on the value of the copyright (i.e. whether the use of the copyrighted material is likely to devalue the original material); and
  • Whether the creator of the copyrighted material was given credit for the works.

If the person using copyrighted material is found that have used the material largely for making a profit or for the purposes of devaluing the works or the copyright attaching to the works, the courts will generally be more inclined to deem the use of the material as unfair use.

Remedies for copyright infringement

If you are a copyright owner seeking to bring a claim for copyright infringement, there are a number of different types of remedies that might be available to you depending on the particular circumstances of your matter; for example, the type of material that has been infringed and the way in which the material was infringed will impact which type of remedies you could be entitled to.

Examples of relief that may apply to a claim for copyright infringement include:

  • Injunctions
  • Delivery up of the infringing articles
  • Anton Pillar Order
  • Damages
  • Account of Profits
  • Damages for Conversion

In matters involving copyright infringement, due to the nature of the copyrighted material and the risk of further harm or devaluation of the material if another party is allowed to continue infringing upon the owner’s copyright, it is not entirely uncommon for copyright owners to bring interlocutory applications for injunctions. An injunction in a court order that specifically prevents a party from doing something (e.g. using copyrighted material in a particular way), or alternatively, orders a party to do a specific thing or act (e.g. take down the display of a copy of a particular copyrighted material from a particular website or other exhibition). By seeking an injunction, the applicant can restrain the party infringing their copyright from engaging in further acts that are likely to further infringe that copyright (most commonly by preventing the respondent from using, displaying or otherwise dealing with the material further). In many circumstances, a copyright infringement claims (as well as other intellectual property claims) will generally end with negotiations after an injunction has been successfully obtained.

It is important to note that a defendant accused of copyright infringement may potentially also be subject to criminal penalties, particularly in circumstances where that person had actual knowledge, or ought to have known, of the infringement occurring.

Contact Gibbs Wright Litigation Lawyers

Copyright disputes can often become highly complex, both factually and legally, and it is often not clear cut whether a particular copyright has, in fact, been infringed, and what each party’s legal rights are in relation to the copyrighted material. If you are a party to a copyright infringement dispute, whether you are seeking to bring a claim or find yourself in a position where you need to defend a claim, it is important that you obtain legal advice as early as possible in the dispute to avoid compromising your legal rights and entitlements so that you may limit any potential liability you may otherwise incur.

Contact Gibbs Wright Litigation Lawyers today for a free and confidential consultation with one of our intellectual property dispute lawyers to explore your legal rights and options.

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The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.

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