News &

Is “Innocent” Copyright Infringement a Defence to Copyright Infringement?

Copyright is a form of legal protection automatically provided to the authors or creators of original works. Copyright protection is a very inclusive IP right in intangible property and protects the expression of creative matter. It applies to works that are literary, musical, dramatic, choreographic, photographic, architectural and artistic.

Copyright protection only applies to tangible forms of expression and NOT for ideas.

Rights of the Copyright Owner for Works

Under the Copyright Act of 1968 (the Act), the author of original works is the copyright owner. The copyright owner has the right to make copies of the work, publicly produce the work, and also, sell and advertise the work.

The copyright owner has a personal right to control the use of the work and preserve their individual honor and integrity in the work. These rights are allied to individual creativity and the personal reputation and identity of the copyright owner. This is what is termed as “moral rights” over the work which are the right to attribution, the right against false attribution, and the right against derogatory treatment of the work.

The copyright owner also has the right to relief for copyright infringement where he or she can claim statutory damages or an account of profits. An account of profits means that the infringer can be stripped of the profits the latter may have gained in using the copyrighted work without the permission of the copyright owner.

Copyright infringement

Copyright laws are designed to protect the author or creator of original works from others using and profiting from their work, without permission.

To establish copyright infringement, among others, these two elements must be proven:

(1) ownership of a valid copyright; and
(2) copying of constituent elements of the work that are original.

As you can see, there is no requirement that copyright infringement is done “intentionally” or “willingly” or even “knowingly”.

Innocent Copyright Infringement

Section 115(3) of the Act provides that no damages will be awarded if the infringer was not aware or had no reasonable grounds for suspecting that he or she was infringing copyright. Although damages will not be awarded, injunctions and an account of profits can be ordered and declarations can be made.

An infringer can only rely on the “innocent infringement” argument if the infringer can establish “active, subjective, lack of awareness that the act constituting infringement was an infringement of the copyright” and that “objectively considered [the DJ] has no reasonable grounds for suspecting that the act constituted an infringement”.

Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 43 IPR 32 at 44-45.

Simply stating that the act of infringement was accidental and that you were not aware that the work was copyrighted may, therefore, not be enough!

Avoid innocent copyright infringement

If you did not create it, then the work is not yours to use freely.

Steps should be taken to ensure that you or your staff do not engage in copyright infringement by investing in ways to avoid it. This includes education and training as to the pitfalls of copying or pinching the work of others including on the Internet.

You should be vigilant in ascertaining the source of the material or work used. Find out whether the material is protected under copyright or whether you need permission to use the work from the copyright owner.

Train your staff to know basic copyright principles and put policies and procedures in place that ensure that the source of work or materials is always verified.

Takeaway Points

  • You can be liable for innocent copyright infringement when you unknowingly use another’s work.
  • The copyright owner can only claim an account of profits but not damages for an innocent copyright infringement act.
  • The infringer can rely on “innocent infringement” if he or she “innocently” infringed the work provided this was an active, subjective, lack of awareness and there were no reasonable grounds for suspecting copyright infringement.
  • Claiming ignorance may not be enough.
  • Take vigilant steps to educate yourself and your staff to avoid innocent copyright infringement.


Jaclyn-Mae Floro, BCompSc

Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about any of our services or get in touch at

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

Leave a Reply

Your email address will not be published. Required fields are marked *