Last updated 16 August 2022

Anyone who exercises any of the copyright owner’s rights without express permission infringes the copyright in their work. It is not only those who make the unauthorised copies or authorise someone else to make copies of works who are in breach of copyright, but also those who sell unauthorised versions of works. Some examples of infringing acts are the unauthorised:

  • burning of music or computer software CDs, whether given away or sold (a defence is the personal copying for private or domestic purposes
  • interpreting and performing of a play (originated in a script)
  • purchasing of a restricted number of licences from a computer software developer and then distributing copies of the software. This often happens in organisations where a limited number of licences are purchased and then many more copies are distributed to employees
  • distributing of images such as photographic or digital from an artwork
  • photocopying of books from a library.

Infringement of copyright is determined by qualitative rather than quantitative measures. In other words, the amount of copying is not as relevant as whether or not the essence of a work has been copied. In some cases, even a small amount of copying may amount to an infringement of copyright. Infringement also extends to other activities that are done without the copyright owner’s permission:

  • importation of copyright works into Australia for sale, hire, distribution or exhibition
  • sale, rental or exhibition of works
  • permission of public entertainment venue to be used for the public performance of a literary, dramatic or musical work
  • importation of a device which is capable of circumventing or facilitating the circumvention of technological protection measures, designed to prevent or inhibit the infringement of copyright in a work or other subject matter
  • removal or alteration of any electronic rights management information that is attached to copies of a work or other subject matter in which copyright subsists.

Liability of internet service providers

Internet service providers who authorise others to infringe copyright in relation to online material can themselves be liable for infringing copyright.

Section 115A of the Copyright Act 1968 (Cth) (Copyright Act) assists copyright owners in preventing online piracy from an overseas website. This section provides that a copyright owner may apply to the Federal Court for an injunction to require service providers to take reasonable steps to disable access to an online location. The Federal Court will only grant the injunction if it is satisfied that:

  • a carriage service provider provides access to an online location outside Australia
  • the online location infringes, or facilitates an infringement of, the copyright and
  • the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).

Safe harbour scheme

The Copyright Act contains safe harbour protections for carriage service providers such as internet service providers (ISPs). Section 116ABA of the Copyright Act redefines the term ‘service provider’ to include educational institutions, libraries. archives, key cultural institutions and organisations assisting persons with disabilities, thus extending the operation of the safe harbour scheme to a broader range of service providers.

To qualify, these organisations must implement mechanisms to enable copyright owners to report infringing content on their platforms and request that action is taken to prevent the infringement (e.g. terminating the accounts of infringing users or disabling access to the content).

Technological protection measures

According to the Copyright Act there are three prohibited activities:

  • circumventing an access control technological protection measure
  • manufacturing a circumvention device for a technological protection measure
  • providing a circumvention service for a technological protection measure.

There are both civil and criminal liabilities for these activities. There are some limited circumstances where a circumvention device can be legally manufactured, supplied or used for example:

  • inter-operability between computer programs
  • encryption research
  • computer security testing
  • online privacy
  • law enforcement and national security
  • acquisitions by libraries and other related institutions (ss 116AN(2)–(9) Copyright Act).

Some exceptions are set out in the Copyright Regulation 2017 (Cth).