There are many misconceptions regarding copyright protection which, if not corrected, can result in unintentional copyright infringement with serious consequences for the infringer. The purpose of this article is to correct some of the common misconceptions and provide you with some tips on how to avoid inadvertently infringing one’s copyright.

What work is protected by copyright?

Copyright protects a large number of published and unpublished works in Australia, including literary (including computer programs), dramatic, musical and artistic works. Other subject matters which are protected by copyright include sounds recordings, films, broadcasts and published editions of works.

Misconception #1 – I can copy up to 10% of a work without infringing copyright

It is no defence to copyright infringement that you copied only 10% of the work.

As a general rule, you will infringe copyright in a work if you copy a “substantial part” of it. This is a qualitative, rather than a quantitative, assessment, and it will usually involve identifying the essential elements of the work, in order to determine whether those elements are copied.

There is a specific exception for the copying of a literary work when it is copied for the purpose of research or study, provided the copying is “fair”. If a reasonable portion of the work is taken, for example 10%, of the number of pages of the work, then this will be deemed to be “fair” for purposes of this defence.  

Misconception #2 – I did not know that I was infringing copyright; therefore I did not infringe it

Ignorance of the fact that you were infringing copyright is not a defence to copyright infringement. However, you may be able to limit your liability to an account of profits, rather than damages, if you can prove that you were not aware and had no reasonable grounds for suspecting that you were infringing copyright. Generally, establishing this defence is quite difficult, and there is usually an expectation that you will make reasonable enquiries into the subject matter and possible copyright before copying the particular work. It is not relevant to this defence that you did not know who owned the copyright at the time of committing the infringing act.

Misconception #3 – the work did not have a © symbol on it, therefore it is not protected by copyright

A work will be protected by copyright whether or not it has a © symbol on it. The symbol is merely a sign to the public that the work is protected by copyright. Copyright can subsist in all sorts of works including literature, music, choreography, dramatic scripts, paintings, drawings, photographs, the format and layout of a publication or website, and sculptures. Copyright protection will automatically attach to a work upon its creation in material form – so there is no need to register the work or to mark the work with a © symbol before it is protected.

 So, how can I avoid copyright infringement?

You might infringe copyright in a work not only if you copy it directly, but also if you authorise someone else to copy it; or you copy or use a work that is an unauthorised copy of it. For example, if you purchase an infringing copy of a painting at a market and then display it on your business premises; you may be liable for copyright infringement.

It is not only the mere act of copying that can give rise to an infringement, but also publishing a work for the first time in Australia in hardcopy or online, performing the work, and commercially exploiting an unauthorised copy of the work.

In order to avoid copyright infringement, it would be prudent to take the following actions before exploiting a work:

1.  make proper enquiries of the true origin of the work. This may involve asking the person from whom you purchased the work, where they got the work from and is it an authorised copy;
   
2. check for the © symbol on the work;
3. conduct google and other appropriate internet searches (including image searches) of the work to identify its source;
4. contact the relevant authority for consent or a licence to use or copy the work; and
5. if after taking the above actions, you are still concerned about your rights, seek legal advice.

Conclusion

Copyright, like other IP rights, grants the copyright owner exclusive rights to exploit the work for the term of the copyright. Because copyright automatically protects most works, it can easily be infringed by a person who misunderstands copyright or who does not make proper enquires before exploiting the work. Therefore, appropriate action should be taken to ensure you do not use or copy a work that is subject to copyright.

If you would like further information or legal advice regarding copyright protection and infringement, contact Emily Capill on ecapill@coulterroache.com.au.