A copyright dispute arises when a person uses material that is subject to copyright without the permission of the material’s creator. The Copyright Act 1968 (Cth) (the Act) contains rights that allow the owner of the copyright to reproduce, adapt, translate, perform, broadcast, or publish their protected work. Most copyright disputes involve infringements of these rights.
Copyrighted work can be valuable so it is important to protect the work from infringement — and this is when Gibbs Wright Litigation Lawyers can help. Whether someone has infringed your copyright or you’ve been accused of infringing someone’s copyright, call us for a free, no-obligation consultation about your legal options.
What is copyright?
Copyright is a bundle of rights that protects the original expression of ideas. The rights are automatically held by visual artists, musicians, writers and film makers when they create an original work. They include rights to reproduce the work, perform or display it publicly, and distribute copies of it.
To be protected by copyright, the subject matter must be in material form (not an idea or thought). The Act divides copyright into:
- literary works, such as books, articles, poems, scripts and compilations such as databases;
- artistic works such as photos, painting, sculptures and maps;
- dramatic and musical works; and
- audio-visual works, such as films, broadcasts, sound recordings and multimedia.
Copyright protection generally applies for the life of the person who created the protected material, plus 70 years. The protection commences when the work is first written down or recorded (literary, dramatic, musical or artistic works), when the first copy of it is produced (film), or when it is first broadcast from within Australia (sound or TV).
What is copyright infringement?
A copyright infringement occurs when a “substantial part” of copyrighted material is used without the permission of the copyright owner. “Substantial part” is not defined by the Act but courts consider the deciding factor to be the quality of what is copied rather than the quantity. For example, the copying of a chorus of a song or its melody, rather than the complete song, may still be enough to constitute a copyright infringement.
There are two types of infringement — direct and indirect.
- Direct infringement involves the unauthorised use or reproduction of copyrighted works. This can occur when a person substantially reproduces, copies, distributes, displays or authorises the infringement of copyrighted work.
- Indirect infringement involves unauthorised dealings with copyrighted work rather than infringing the work itself.
Examples of copyright infringement
- Copying a movie and making it available for illegal downloading by others as an online torrent.
- Copying a journalist’s article onto your personal blog without permission.
- Making a cover of a well-known song without permission and posting it on social media.
- Buying clothing with the reproduction of a specific brand name on it from overseas and bringing the clothing to Australia to sell it.
- Selling an article written by someone else.
- Allowing a venue to be used by a performer who is infringing copyright.
Common misconceptions about copyright
If there’s no copyright notice, copyright does not apply
Copyright applies automatically when a work is created. A copyright notice is not required for copyright protection.
If it’s on the internet, anyone can use it
You only need to change 10% of the work for it to not be a copyright infringement
If the part of the original work that is used is an integral or important part of that work, even if it is only a small part, permission may be required. The Act does, however, allow the use of 10% of copyrighted work in some circumstances, such as for research or study.
If you credit the creator then it isn’t an infringement
The creator of a work has a right to be identified and named unless it is not reasonable to do this, but they also have a right to control how the work is used, regardless of whether you credit them.
I can use another person’s work as long as I don’t profit from it
You are infringing copyright if you use another person’s work without permission, whether you make a profit or not. It cannot be argued that you are giving the owner free advertising.
How copyright disputes can be resolved
If someone has infringed your copyright or you’ve been accused of infringing someone else’s copyright, Gibbs Wright can help you. Our intellectual property lawyers can negotiate a settlement to the dispute, or if necessary, litigate on your behalf.
Remedies you might get:
Sending a copyright infringement notice
If you are a copyright holder, we can send a warning notice or a letter of demand on your behalf.
On the other hand, if you have received a letter alleging that you have infringed copyright, our lawyers can help you to develop an effective response.
Getting an injunction
We can help you apply to a court for an injunction to stop the copyright infringement or prevent any further infringement.
Getting the material delivered
We can apply for a court order to have the infringing material be delivered, destroyed or removed.
Getting financial relief
We can seek that the person who is infringing copyright account for the profits that they earned from their wrong doing, by repaying you for some (or all) of those profits.
Alternatively, we can seek that the person who is infringing copyright repay you for the profits, or the monetary value of the copyright property, that you would have been entitled to if they had not infringed your copyright.
Why choose Gibbs Wright
Whether you are enforcing your rights or defending a copyright infringement claim, Gibbs Wright has copyright lawyers in Brisbane who can help. We can represent an individual or a business in negotiations to settle a dispute, or in taking court action.
Proper legal advice is critical in any copyright dispute. Call us for a free, no-obligation consultation about your legal options.