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Infringement and remedies

Copyright is infringed if a person does or authorises any act which is the exclusive right of the copyright holder without their permission [Copyright Act 1968 (Cth) ss 36 and 101] infringes copyright unless an exception applies. There are a number of exceptions - for further details see Acts that do not infringe copyright.

If a person authorises an infringement (for instance by telling someone to make a copy without permission) both the person who does the copying, and the person who authorised it, will be guilty of infringement of copyright.

Using all or a substantial part of a work will be an infringement of copyright [s 14(1)]. The unauthorised copying of items protected by copyright, or counterfeiting, is also referred to as 'pirating' and includes illegal downloading of electronic material from 'pirate' sites. There is a common misconception that if only a small part of the original work is altered, or only part of it is copied, there will not have been an infringement. This is not necessarily true as the courts have held that when considering whether a substantial part of a work has been copied it is as important (and in some cases more important) to look at the quality of the part copied as the quantity copied.

Copyright can be infringed if a person sells or distributes a copyright item without the licence (permission) of the copyright holder [s 38, 103].

Articles imported and offered for sale or hire in Australia can also infringe copyright when the making of the article in Australia would have constituted an infringement [s 37, 102].

Remedies and offences

The infringement of copyright gives the owner a civil right of action against the infringer. The court may grant an injunction (preventing further acts of infringement); an order that infringing copies be surrendered; or an order for damages or a share of profits. Where there is flagrant infringement additional damages may be recovered. [s 115]

Certain criminal offences are also created by the Copyright Act 1968 (Cth). It is an offence under the Act to sell, hire or distribute an article where the person doing so knew, or ought reasonably to have known, that the article was an infringing copyright [ss 132AD-132AE]. Penalties also apply for possessing infringing copies for commercial purposes [s 132AJ]; giving unauthorised performances of literary, dramatic, or musical works [s 132AN]; playing records or showing films in public without authority [s 132AO]; and promoting or making available circumvention devices [ss 132APC-132APE].

Infringement and remedies  :  Last Revised: Thu Mar 3rd 2016
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