Copyright will not protect you against independent creation of a similar work. Two people could write very similar songs, independently of each other, for example. To constitute an infringement a person uses all or a ‘substantial part’ of an author’s copyrighted material in one of the ways exclusively controlled by the owner, without either express or implied permission of that copyright owner, where there are no defences or exceptions to the infringement.
Substantial part does not necessarily equate with a precise portion of the work or other subject matter. Rather, substantial refers to the particular quality or qualities that make it important or distinctive. For example, sampling the essential melody of song without permission will be a breach of copyright. Well known musicians have faced copyright infringement cases, such as George Harrison or Vanilla Ice. Even well known authors have been noted for infringing copyright, such as H.G Wells, and T.S Eliot, when ‘‘borrowing’’ large parts of their work from obscure authors.
Copyright is infringed when:
- all or a ‘substantial part’ of the work or other subject matter has been used in a way exclusively controlled by the copyright owner;
- without express or implied permission; and
- no defence or exception exists
Copyright is also infringed when one person authorises another person to do the acts included in the copyright without the permission of the copyright owner. This has become a particularly contentious issue in the online environment. Recently, the High Court of Australia decided that an internet service provider did not authorise copyright infringement simply by providing the internet service used by unauthorised downloaders of copyright-protected material.
Exceptions to infringement
The Copyright Act allows certain uses of copyright material to be made without obtaining permission from the owner of the copyright.
It is permissible to make a ‘fair dealing’ use of an appropriate part of copyright material, without permission, for specific purposes:
- research or private study;
- criticism or review;
- reporting news;
- parody and satire;
- a judicial proceeding or a report of a judicial proceeding;
- the giving of professional advice by a legal practitioner, patent attorney or trademarks attorney.
Research and study is one of the most common forms of fair dealing. In libraries you will often find that there are statements on how much of a work you can reproduce for the purposes of research or study.
No infringement occurs where short extracts of published literary, dramatic, musical or artistic works or short extracts of adaptations of those works are collected in a book, sound recording or film intended to be used by places of education.
Libraries and archives
Copying in libraries and archives is permissible when the purpose is:
- for members of Parliament;
- for research or study purposes;
- for other libraries or archives;
- to make a copy of an unpublished work;
- to make a working copy, reference copy or replacement copy of a work kept in the collection of the Australian Archives;
- for preservation or replacement;
- for publication of an unpublished work.
There are some limitations on the extent to which libraries can make available electronic reproductions of works.
There are also a number of specific exceptions to infringement in relation to works, and subject matter other than works. For example, it is permissible to make reproductions of computer programs for a number of purposes which include: normal use or study; making back up copies; making interoperable products; correcting errors; and security testing. Similarly, it is permissible to read or recite literary, dramatic and musical works in public or for a broadcast and to cause sound recordings to be heard in public or broadcast. There are a range of other specific exceptions to infringement which are not listed here.
Compulsory licensing schemes
The Copyright Act also establishes a number of compulsory licensing schemes. Under these schemes, acts which would otherwise infringe copyright are permitted, on condition that a royalty is paid to the copyright owner. For example, educational institutions and institutions assisting people with intellectual disabilities are allowed to make copies of sound recordings or films of transmissions without infringing copyright in any work, sound recording or film included in the transmission. This exception only applies if:
- the administering body of the institution has given a remuneration notice to the appropriate collecting society;
- the copy is made solely for educational purposes or for the purpose of providing assistance to people with intellectual disabilities;
- each copy of the recording of the transmission is appropriately marked.
Each of these institutions may also make multiple copies of literary, dramatic, musical and artistic works, provided that essentially the same requirements as set out above for making of copies of transmissions are followed.