The Copyright Act 1968 (Cth) provides for both civil and criminal penalties in relation to infringement of the owner’s exclusive rights. Infringement may be 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 rights in relation to either a whole or a substantial part of the copyright work 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).   The Courts look at whether the allegedly infringing work was produced by using the copyright work.   Indirect infringement occurs in relation to the importing of a copyright article into Australia (s37, 102) without the copyright owner’s assent or the dealing in infringing articles. (s38, 103)

Defences 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, S103-104,  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. 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.  There are also statutory collecting societies such as the Copyright Agency Limited, the Australian Performing Rights Association, the Phonographic Performance Company of Australia, The Australasian Mechanical Copyright Owners Association, Screenrights and VISCOPY which administer the rights of copyright owners via the collection and distribution of fees to owners for the use of their works.

Seizure of goods by customs

Pirated or counterfeit goods can be seized by the Australian Customs Service who are 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 object to the importation into Australia of copies of the relevant material 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 or 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 and enforcement

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.

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 ( S202).  It is open to a person who has received what they believe to be a groundless threat of infringement to seek a declaration that the threats made are unjustifiable and recover damages.

Criminal offences

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 and interference with electronic rights management.  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 will normally be used in relation to street vendors selling infringing goods at 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.