How to avoid copyright infringement

With so much information publicly available, you must be careful not to infringe copyright when you use another person’s material.

How can you better comply with Australian copyright laws?

What is copyright?

Copyright is protection over the way an idea or information is expressed. It is not the idea or expression that is protected, meaning you will not be infringing copyright if you use the same idea or information as another person and use your own expression to convey the idea or information.

For copyright to subsist in a literary work (e.g. publication or seminar notes) under the Copyright Act 1968 (Cth):

  1. the owner must be an Australian resident or citizen;
  2. the work be made or first published in Australia; and
  3. it must be original (including original compilations of another person’s work).

In Australia, copyright protection is automatic from the time the original work is created and usually exists from the date of publication until 70 years after the author’s death.

Copyright owners have exclusive rights to reproduce, publish, perform the work in public, communicate the work to the public and make an adaptation of the work, grant permission for others to use the work, among other things.

Copyright owners also have moral rights.  That is, they have the right of attribution of authorship, the right against false attribution of authorship and the right of integrity of authorship.

You are infringing copyright if you exercise any of the above rights without the copyright owner’s permission. For example, copying a substantial part of the owner’s work, or even photocopying and distributing the work.

#Tips: Key questions that will help you whenever you are using another person’s material:

  1. Does copyright subsist in the literary work I intend to use in my material?
  2. If so, have I sought permission from the copyright owner to reproduce, publish, perform, communicate or adapt the work?
  3. If I do have permission, have I correctly attributed the work to the author?

What if I inadvertently infringed copyright?

Copyright infringement occurs regardless of whether it is intentional or not. A copyright owner who issues court proceedings against you is entitled to seek a court order for an injunction to restrain you from infringing copyright and an account of profits.

The court will not award damages against you if you were not aware or had no reasonable grounds for suspecting that you were infringing copyright.  However, the defence for innocent infringement is viewed narrowly in court. In one case, a defendant who made an error in identifying the copyright owner relied on this defence, but a defendant who was mistaken about the scope of copyright law could not rely on the same defence.

#Tip: Seek help if you do not know whether you will be, or are, infringing copyright.

What if there was no copyright notice on the work?

Copyright may still subsist in the literary work even if it does not have the copyright notice (“© [name of owner] [year]”).  So if you are referring to another writer’s work, the fact there is no copyright notice does not mean it is not protected.

#Tip: If there is no copyright notice on a work, still seek permission from the copyright owner to reproduce or publish the work.

What if I only copy less than 10% of the work?

Depending on the circumstances, unless you have copied the work for research and study purposes, copyright infringement can occur even if you have copied a small part (section 40, Copyright Act 1968).

Copyright infringement occurs if an act is carried out in relation to a substantial part of the work or other subject matter (section 14, Copyright Act 1968).

This does not necessarily mean it is the quantity of the work – copying a small portion does not mean your act does not constitute copyright infringement.  The courts will consider the quality of the work taken. That is, how important it is, and the extent of author’s effort and level of skill taken to create it.

In one case, the court held that 20 seconds of a four minute musical work is copying a substantial part of the work because the excerpt was easily recognisable by the public.[1]

#Tip: When you decide to copy a work without the author’s permission, look at the quality and quantity of the work copied.

What if I use a YouTube video clip during my presentation?

A video clip posted on YouTube does not automatically mean you can use it without permission from the copyright owner.

Generally, you will need permission from the copyright owner to use the YouTube video clip.

However there are some exceptions.  Most common exceptions that may apply in this situation are if:

  1. the clip is marked with a ‘Creative Commons BY Licence’;
  2. your use of the clip is less than a substantial part of your presentation (see response to Question 4 above); or
  3. your use of the clip is ‘fair’ and for the purposes of research or study, criticism or review, parody or satire, or reporting news.

 

#Tip: A video clip posted on YouTube does not automatically mean you can use it without infringing copyright.

Copyright law is a technical and complex area of law. If you do not know if you are infringing copyright, seek legal advice.

Final tip: Keep abreast of any changes in copyright law.

On 20 December 2016, the Productivity Commission reviewed the intellectual property system at the request of the Australian Government and recommended Australia adopt the broad and open-ended “fair use” exception, which currently exists in America. Broadly, infringement will be allowed if it is fair, and will be determined on a case-by-case basis.

This is likely to impact on your use of another person’s material.

Should you require advice on issues relating to copyright in material published by you or someone else, please contact our Associate Janette Li or Principal, Mark Fitzgerald

[1] Hawkes and Son (London) v Paramount Film Service [1934] Ch 593.

 

This article was published in Commercial insights – November 2017.


 This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.

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