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When Copyright Law Applies

Original Work and Causal Connection for Copyright Law to apply

To attract copyright protection, a work must be ‘original’ in the sense that it originates from the creator and is not copied from another person’s work. There must also be a connection between the work in which copyright subsists and the alleged infringing work. If there is no “copying”, then there is no act of infringement. Therefore, if two authors produce independently the same result then copyright may subsist in each work as separate copyright works.

What is taken must be “Substantial” 

Copyright is about the quality rather than the quantity of what is taken. It is the essential or material features of a work that should be ascertained. This varies from case to case.  In SW Hart v Edwards Hot Water Systems, the court observed:

… the question whether there has been a reproduction is a question of fact and degree depending on the circumstances of each case. The emphasis upon quality rather than quantity directs attention to the significance of what is taken.

In considering this question, the most important factor is the quality of what is taken in relation to the work as a whole rather than the quantity. Therefore, it is necessary to consider not only the extent of what is copied but the quality of what is copied. If it is a vital or critical part, even though small in quantity, it may still be sufficient for infringement.

How is Copyright Infringed – Crossing the Line

  • Copyright is infringed when a person other than the owner and without the owner’s licence, does any act comprised in the copyright.

Section 36(1) of the Copyright Act 1968 (Cth)provides:

Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright.

Section 31(1) of the Act sets out the following exclusive acts in the case of  literary, dramatic or musical work:

  • to reproduce the work in a material form;
  • to publish the work;
  • to communicate the work to the public;
  • to make an adaption of the work

The creator of a work has the exclusive right to publish the work and communicate it to the public, for example, by making it available on the Internet. Authors also have moral rights that are separate from copyright. The exclusive rights of the copyright owner are all based upon the concept of control of reproduction and communication.

Moral Rights in Australia 

Authors have moral rights under the Copyright Amendment (Moral Rights) Act 2000 (Cth). The author of a copyright work has the right to:

  • be attributed for the work;
  • not to have the work falsely attributed; and
  • not to have the work treated in a derogatory way.

This means even when you have obtained someone’s permission to reproduce their work, if you do not mention they are the author, this may give them grounds to bring a moral rights claim against you unless they have waived that right or given you permission to use the work without attributing them.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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