The Copyright Act 1968 (Cth) provides for both civil and criminal penalties in relation to infringement of the owner’s exclusive rights.
Infringement occurs when a person, without the permission or authorisation of the copyright owner, does or authorises the doing of an act which falls within the exclusive rights of the copyright owner in relation to their work.
It is important to remember that in terms of the exclusive rights of copyright owners, different kinds of works and subject matter have different kinds of rights. It is therefore necessary to consult the legislation to determine what kinds of work/s are in question when considering copyright infringement.
Infringement may be either direct or indirect.
Direct infringement occurs when a person, without the copyright owners’ consent, either does or authorises the doing of an act within the scope of the copyright owner’s exclusive rights, in relation to either a whole or a substantial part of the copyright work under s14(1), judged qualitatively.
The Act doesn’t define what a “substantial part” is, and it is necessary to assess whether the part which has been taken is an essential or material part of the work as a whole. Even taking a minute proportion of a copyright work may constitute infringement.
Where the infringement in question relates to an alleged reproduction there must exist sufficient objective similarity and a causal connection between the two works in question. (SW Hart Co. Pty Ltd v Edwards Hot Water Systems).
For example in the recent case of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd, the Federal Court of Australia was asked to determine whether the flute riff in the 1981 pop hit ‘Down Under’ by Australian rock band ‘Men at Work’ reproduced a substantial part of an earlier four bar work ‘Kookaburra Sits in the Old Gum Tree’, a folk song composed in 1934.
The flute riff appeared at three points in the song, and was said to reproduce two of the bars of the original four bar Kookaburra song, even though it was mixed in with other musical notation. In determining the issue of whether Men at Work had infringed the earlier copyright in the musical work, the Court considered whether there was an objective similarity between the two works in question and a causal connection.
There was a concession that there was a causal connection between the two works, so the Court’s focus was only on whether there was a sufficient degree of similarity between the two works to render the defendant liable for copyright infringement. This involved an aural and visual comparison of the two works, emphasizing that it as the quality of the features which were taken rather than the quantity.
In establishing whether there is a causal connection between two works in a coypright infringement case, the question is whether the allegedly infringing work was produced by using the copyright work, whether sub-consciously or consciously. The Full Court of the Federal Court upheld the Federal Court finding that Larrikin Music were owed a share of all royalties on the song ‘Down Under’, because the short but distinctive flute sequence in the 1981 pop hit was borrowed from the folk tune. The Court set this amount at 5% of all ‘Down Under’ royalties dating back to 2002.
As stated previously, there is a distinction between direct and indirect copyright infringement. Indirect infringement of copyright occurs in relation to the importing of a copyright article into Australia (ss37 &102) without the copyright owner’s assent or the dealing in infringing articles. (ss38 & 103)
DEFENCES AND EXCEPTIONS TO COPYRIGHT INFRINGEMENT
There are a number of defences and statutory limitations which operate to limit the exclusive rights of the copyright owner, ranging from the fair dealing provisions contained in ss40-43 & ss103-104, to provisions granting compulsory licences and providing for royalty free uses of a copyright work.
The fair dealing exceptions require complex interpretation of case law. In order to qualify as a fair dealing of a copyright work under Australian law, a particular use or dealing must fall within one of a number of specific purposes which are set out in the Act.
These are review or criticism, research or study, news reporting, judicial proceedings or legal advice or parody or satire. In addition to falling within one of these categories or purposes, the use of the particular work in question must be deemed to be a fair use.
Australian law on fair dealing differs from US law in this regard which is not confined to specific categories and is ‘at large’. US law permits any use of a work regardless of the purpose as long as it is found to be a fair use within the Statute and case law interpreting fair use.
There are also time, device and format shifting provisions which have been introduced into the law to enable users to employ current technologies to make use of a copyright work in different devices or places.
Amendments to the Copyright Act now officially enable a person to legally record a broadcast to watch or listen to at a more convenient time under s111, make a copy of a sound recording on their iPod or other device, providing it is for the purpose of private use under s109A or a copy of a literary work, magazine, newspaper article for their limited private use (see s43C).
There are also a series of exceptions contained within the Act which apply to computer programs, such that liability is excluded for copyright infringement for the purpose of interoperability, security testing, and use of computer programs. Australian law defines temporary copies or caches stored in RAM as technically reproductions of a copyright owner’s work. Provisions in the Act exist to provide exceptions to liability in relation to temporary copies of works which are made in the normal course of use of electronic works.
The law also provides for statutory collecting societies such as the Copyright Agency Limited, the Australian Performing Rights Association/Australasian Mechanical Copyright Owners Association, the Phonographic Performance Company Of Australia, Screenrights and VISCOPY.
These bodies administer the rights of copyright owners via the collection and distribution of fees to owners for the use of their works. There are licenses which permit use by educational institutions, organisations and individuals upon payment of a licence fee which is determined either by agreement or by the Copyright Tribunal.
SEIZURE OF COPYRIGHT WORKS BY CUSTOMS
Pirated or counterfeit goods can be seized by the Australian Customs Service which is empowered to intercept unauthorised imports of copyright materials, including artistic works, sound recordings, computer disks, audio tapes, videotapes, films, CD-ROMS and DVDs.
The copyright owner may give Customs written notice informing them that they are the copyright owner and objecting to the importation into Australia of copies of the relevant material under s135(2).
Such a notice will remain in force for a period of years or until declared to be void. Customs may require the copyright owner to provide a sum of money to reimburse the Commonwealth for reasonable expenses incurred as a result of the seizure, and if infringement proceedings are not instituted within a specified period of time, the goods must be released to the importer.
REMEDIES FOR COPYRIGHT INFRINGEMENT
A range of remedies are available including injunctions, damages, an account of profits and orders for delivery up and or destruction of infringing materials.
In limited circumstances it may be possible to obtain special search orders called Anton Pillar Orders to preserve evidence which may be destroyed prior to the obtaining of a Court order.
Courts have been cautious in granting such orders. One example where such an order was granted was in Universal Music Australia Pty Ltd v Sharman License Holdings (the Kazaa case). The proceedings were contentious in that it was alleged that facts in the Application were not disclosed by the Applicants who had sought and obtained the Order.
As a result of the Order, representatives including forensic experts and the Applicant’s Solicitors were authorised to enter and search the premises occupied by the defendant and three Universities alleged by the Plaintiff to be involved insofar as their computers were being used as a supernode in illegal file sharing. The transitory nature of supernodes and the risk of the data being destroyed were some of the factors which influenced the granting of the Order by the Judge. The Applicants obtained electronic data in the form of a CD as a result of the execution of the Order.
Copyright owners need to be mindful of the fact that it is unlawful to threaten to institute proceedings for infringement even though it is honestly believed that infringement has occurred under s202.
It is open to a person who has received what they believe to be a groundless threat of infringement to seek a Declaration before the Courts that the threats made are unjustifiable, an injunction to prohibit further threats and can claim damages.
CRIMINAL OFFENCES FOR COPYRIGHT INFRINGEMENT
The Copyright Act now provides for strict liability, summary and indictable offences with a range of penalties, fines and even possibly terms of imprisonment in relation to copyright infringements on various scales.
There are provisions to deal with interferences with electronic rights management or Digital Rights Management devices (DRM) and systems set out in ss132AQ-132AS.
Those found to be involved in the manufacture, dealing or circumvention of Technological Protection Measures (TPMs) can be charged with indictable offences (ss132APC-132APE).
The penalties include possible jail terms. Lower level offences, such as strict liability offences, are punishable without any proof of fault, and administered by way of a copyright infringement notice scheme.
Such Infringement Notices would typically be used in relation to street vendors selling infringing goods at local markets. The notices provide the option to pay a fine and may also require forfeiture of infringing materials to avoid the risk of prosecution. In respect of indictable offences corporations will be liable for penalties of up to five times the amount faced by individuals.
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