Copyright infringement and protection

For companies with large intellectual property portfolios, safeguarding their copyrights from misuse and unauthorised exploitation is a commercial priority. Davies Collison Cave’s team of copyright experts can help protect and defend your rights.

How copyright is infringed

A person’s copyright is infringed if their work is copied or used by another person without their consent. Under the Copyright Act, copyright can be infringed even if the whole of the copyrighted work has not been copied. All that is required is that a “substantial part”, or a recognisable part of the work has been copied.

Types of infringing acts

Copyright infringement does not only extend to direct copying. Under the Copyright Act there are many different types of activities that may constitute copyright infringement if they were done, or authorised to be done, without the consent of the copyright owner.

For example:

• reproducing the work;
• publishing or performing the work in public;
• communicating the work to the public (which can include displaying the work in public, posting it on the internet, or broadcasting it on television);
• adapting the work (such as adapting a story into a screenplay); and
• importing counterfeit goods into Australia for commercial purposes.

Defences to copyright infringement claims

Contrary to popular belief, there is no “10%” rule about how much of a work can be copied without infringing copyright in Australia. However, in some circumstances a person will have a defence to copyright infringement if they can show that their use of the copyright was a ‘fair dealing’ for a particular purpose, such as:

• research or study;
• criticism or review;
• parody or satire; and
• reporting news.

It is always advisable to seek legal advice regarding these defences before relying upon them.

Protecting your copyright

Copyright notices: an optional tool

A copyright notice is a small note printed on a copyright work which usually includes the © symbol, the date on which the work was created or the name of the person who authored the work.

There is no legal requirement in Australia for copyrighted works to contain a copyright notice. However, copyright notices can be a useful tool for reminding others that your work is protected by copyright law, and that unauthorised copying of that work is not allowed.

Customs notices

If you believe that there is a risk that items infringing your copyright will be imported into Australia, it is possible to lodge a Notice of Objection with Australian Customs giving them a description of your copyrighted work. The Notice assists Australian Customs Services in identifying and seizing items which may be counterfeit items. Customs Notices are an effective way to prevent counterfeit goods from reaching the marketplace.

The Copyright Act sets out the procedures that must be followed in order for a copyright owner to protect their rights if counterfeit goods have been seized. The process for lodgement is very similar to that for imported goods which infringe registered trade mark rights. Find out more about the steps in lodging a Notice of Objection with Australian Customs ».

An experienced team to protect your rights

Davies Collison Cave has extensive experience in litigating copyright infringement and licensing disputes, particularly in the Federal Court and Federal Magistrates' Court of Australia.

We act for a wide range of international and domestic companies, including fashion designers and retailers, manufacturers, members of the building and construction industry, film makers and members of the entertainment industry, and members of the food and beverage industry. Our lawyers have been involved in some of Australia's leading cases on copyright law, including cases on the overlap between copyright and design law.

Our copyright protection services

Davies Collison Cave can assist with:

• establishing enforcement procedures and strategies for dealing with counterfeit goods seized under a Customs Notices
• reviews of documents, such as product packaging, websites, user manuals and advertisements to identify any copyright issues that may arise prior to product launch
• drafting, negotiating and reviewing copyright licences and providing advice on the best licensing structures and strategies to suit your needs
• contacting copyright owners to obtain a copyright licence and advice on the best way to structure the licence to suit your needs.

Contact us to discuss your needs, or meet our team of copyright law specialists.