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Gold Coast Copyright Lawyers – Have we breached Copyright?

Copyright Law in Australia

If you have written a work that is protected under copyright law, there are certain rights that only you as the author of the work are allowed to do with that work. This is called a bundle of exclusive rights. In the case of a literary, dramatic or musical work, to do all or any of the following acts:

  • 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

Therefore, the creator of the 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. Moral rights are personal to an author and consist of:

  • the right of attribution of authorship;
  • the right not have authorship of a work falsely attributed; and
  • the right of integrity of authorship.

The exclusive rights of the author are all based on the concept of control of reproduction and communication of their work.

When Copyright Applies

Works must be ‘original’

The correct approach is to first determine whether the work is original and protected by copyright. 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. You cannot get copyright protection for work that you have “copied”. There must also be a causal connection. If there is no causal connection between the work in which copyright subsists and the alleged infringing work then there is no act of infringement. There must be some copying whether it is direct or indirect. If two authors produce independently the same result copyright may subsist in each work as a separate subject-matter of copyright.

Works must be ‘substantial’

Copyright is about the quality rather than the quantity of what is taken. This varies from case to case. The most important factor is the quality of what is taken in relation to the work as a whole rather than the quantity. As French CJ, Crennan and Kiefel JJ stated inIceTV Pty Ltd v Nine Network Australia Pty Ltd:

… in order to assess whether material copied is a substantial part of an original literary work, it is necessary to consider not only the extent of what is copied: the quality of what is copied is critical.

Determining what is substantial will depend on whether what you are copying is a substantial, vital and essential part of the original work. You have to look as the essential feature of the work which is alleged to have been copied. If it is a vital or material part, even though small in quantity, it may still be sufficient for infringement. Ultimately, therefore, what is copyright infringement, will depend on the facts. If you copy too much, you are likely appropriating another person’s labour, skill and research beyond what is a fair and legitimate use.

When 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:

Direct Infringement

  • Substantially reproducing the work
  • Authorising a copyright infringement
  • Unconscious copying
  • Reproducing a work from oral instructions

Indirect Infringement

  • Importation for sale of articles which infringe copyright
  • Sale and other commercial dealings of articles which infringe copyright
  • Permitting a place of public entertainment to be used for performance that infringe copyright

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Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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