Infringement of copyright
Assuming that ownership can be established, the question is typically whether or not any copying of the work has taken place without the licence of the owner of the copyright. There are a number of specific provisions which cover specific scenarios but generally, copyright will be infringed if a person reproduces, publishes or communicates the work or a substantial part of it to the public in Australia, and they cannot rely on any of the defences provided for under the Copyright Act.
Reproduction for example would occur as soon as a document is put onto a USB stick, if a work is copied by drawing it by hand, or words are copied and pasted into an email before sending the email. Often the reproduction right is the first right to be infringed.
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There are various defences. It is important to act quickly and decisively and our practitioners are familiar with the relevant precedent case law necessary to advise you about the issues at hand and the quantum of damages involved in relation to your matter.
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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.
By Newyorka Musabelliu and Chris Chang – January 2020 It is not surprising that the law cannot keep up with the growth in artificial intelligence.