FAQ
who can SUE FOR copyright INFRINGEMENT IN AUSTRALIA?
It is important to first establish whether or not copyright subsists in the relevant work. Broadly speaking, under the Copyright Act 1959 (Cth) copyright will subsist if the relevant work was first published in Australia and if the author was either an Australian citizen or resident of Australia. Even if the work was not first published in Australia, but in a country that is a party to a treaty of which Australia is also a party, then the work is likely to be protected in the same or a similar manner and be provided with the same protection in Australia.
what can you do if your copyright has been infringed?
The remedies available under the Copyright Act 1959 (Cth) include an injunction to prevent the respondent from infringing or continuing to infringe. In addition, the applicant can elect to pursue either an account of profits or damages. If damages are sought, compensatory damages are available as well as additional damages if, in summary, the conduct of the respondent was flagrant.
who owns the copyright?
Copyright generally vests in the author except for example where the author created the work in the course of their employment. So one needs to ensure that any assignments of copyright have been made in writing to the person seeking to enforce the copyright. If you hire a contractor for example to create artistic works for your business, it is not enough that you paid them for their work. Any assignment must be in writing.
what to do if you are accused of copyright infringement
It is important that you obtain advice promptly as to whether or not the applicant is entitled to seek a remedy and whether or not any defences are available. If infringement can be established, your conduct can have a bearing upon whether or not additional damages are available to the applicant.
