Associations and institutions are welcome to apply to become members of the ALCC.
In lots of situations using copyright material without the owner’s permission is an infringement.
As a general rule if material is copyright protected then unauthorised use is an infringement.
Photo: Tim Parkinson. CC BY 2.0. Full attribution information below.
As a general rule if material is still protected by copyright unauthorised use of the material is an infringement unless an exception applies.
There are a number of situations where infringement may occur. These include:
- Direct infringement
- Authorising an infringement
- Importation of material that, if it were made in Australia, would be an infringement
- Removing or altering electronic rights management information
- Circumventing technical protection measures (TMPs).
There are also situations where acts related to a copyright infringement may constitute a criminal offence.
Situations giving rise to an infringement of moral rights are also included on this page.
Direct infringement
Where a person undertakes the infringing act themselves a direct infringement occurs.
Authorisation
Where a person or entity authorises the infringing act to be undertaken by someone else. This is called authorisation liability. In determining if authorisation has occurred a court will consider the extent of the person’s power to prevent the infringing act, the nature of any relationship between the person and the infringer and whether the person took any reasonable steps to prevent or avoid infringement, including complying with any relevant industry codes of practice.
Although it depends on all the circumstances, sometime you can authorise someone else’s infringement just by providing the device they use to do the infringing (e.g. the photocopier or computer used to do the infringing act).
However, the good news is that libraries and archives are protected from being held liable for copyright infringements by clients if they post the prescribed copyright notice next to the photocopier or computer. They can also access extra protection where they are providing online services to clients under the voluntary copyright safe harbours.
Importation of infringing material
Where material that would be an infringement in Australia is imported into the country for sale or hire and the person who imported the infringing material knew or out reasonably to have known the making of the material in Australia would have been an infringement then an infringement has occurred by virtue of sections 37, 38, 102 and 103 of the Copyright Act.
Removal or alteration of electronic rights management information
Where electronic rights management information is removed or altered and the person who removed or altered the electronic rights management information knew, or ought reasonably to have known, that the removal or alteration would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter.
It is also an infringement to distribute, import into Australia or communicate a copy of a work or other subject-matter to the public where electronic rights management information related to that work or other subject-matter has been removed or altered or to distribute or import into Australia to distribute electronic rights management information that has been removed from a copy of the work or other subject-matter.
Circumvention of a technical protection measure
Where an access control technological protection measure (TPM) has been circumvented and the person who does an act that results in the circumvention of the TPM knows, or ought reasonably to know, that the act would result in circumvention, unless you have the permission of the copyright owner to circumvent the TMP.
TPMs are digital locks applied to copyright material and are defined as a device, product, technology or component (including a computer program) that controls access to the work or other subject-matter. Examples of TPMs include passwords, encryption, access codes and access controls such as region coding on DVDs, CDs and other material. TPMs are protected when there is a connection with copyright-protected material.
It is a breach of copyright to circumvent such a TPM, even where the intended use is legal. However section 116AN provides for situations where circumvention will not be an infringement including:
- When library or archive circumvents a TPM in order to access material protected by a TPM to make an acquisition decision.
- Lawful acts related to law enforcement, national security or performing a statutory function, power or duty
- Identifying and analysing flaws and vulnerabilities in encryption technology
- Testing, investigating or correcting the security of a computer, computer system or computer network
- Identifying and disabling an undisclosed capability to collect or disseminate personally identifying information about the online activities of a person.
- Any other situations prescribed in the Copyright Regulations.
However it is important to note that these and other exceptions to the anti-circumvention provision have requirements that must be met for the exception to apply.
Also, uses related to all the educational exceptions (including the statutory licence) and most of the library and archive exceptions are exempt, but not uses relying on section 200AB.
It is also an infringement to manufacture, import into Australia, distribute or communicate a device for circumventing a TPM. Likewise, it is an infringement to provide or offer to provide a service for circumventing a TPM.
Offences related to copyright infringements
Some situations may give rise to a criminal offence.
Photo: Dave Conner. CC BY 2.0. Full attribution information below.
A final point on infringement: there are situations where acts related to a copyright infringement may constitute a criminal offence. These include:
- Where an infringement or infringements occur with the intention of selling, hiring or obtaining a commercial advantage or profit from the infringement.
- Where an infringement or infringements occur on a commercial scale and have a substantial prejudicial impact on the copyright owner
- Where distribution of infringing material is intended for trade or obtaining a commercial advantage or profit. This includes the intention to distribute infringing material for trade or obtaining a commercial advantage or profit.
- Where infringing material is imported into Australia with the intention of selling, hiring, distributing or exhibiting the infringing material for trade or to obtain a commercial advantage or profit. This includes importing the infringing material for distribution in a way that prejudicially affects the copyright owner.
- Where infringing material is possessed intention of selling, hiring, distributing or exhibiting the infringing material for trade or to obtain a commercial advantage or profit. This includes importing the infringing material for distribution in a way that prejudicially affects the copyright owner.
Each of these offences may be escalated to an aggravated offence where the infringement involved converting a work or other subject-matter from a hard copy or analog form into a digital or other electronic machine-readable form.
In addition to these potential offences, these other scenarios may give rise to an offence:
- Making a device intended to be used for making an infringing copy of a work or other subject-matter.
- Possessing a device intended to be used for making an infringing copy of a work or other subject-matter.
- Publishing or causing to be published an advertisement for the supply in Australia of an infringing copy (whether from within or outside Australia) of a work or other subject-matter.
- Circumvent a technical protection measure (TPM) with the intention of obtaining a commercial advantage or profit.
- Manufacturing, importing, distributing or communicating a device to circumvent a TPM with the intention of obtaining a commercial advantage or profit.
- Providing a service for circumventing a TPM with the intention of obtaining a commercial advantage or profit or offering to provide a service for circumventing a TPM with the intention of obtaining a commercial advantage or profit.
Infringement of moral rights
How and when moral rights are infringed depends on the moral right in question.
Infringement of the right of attribution
An infringement of an author’s or filmmaker’s right of attribution of authorship in respect of a work occurs if a person does, or authorises the doing of, an attributable act in respect of the work without the identification of the author or filmmaker as the author of the work or maker of the film, unless it was reasonable in the circumstances not to identify the author or filmmaker. There are a number of factors outlined in the Copyright Act that are taken into account in determining whether it was reasonable in particular circumstances not to identify the author of a literary, dramatic, musical or artistic work or the maker of a film.
A performer’s right of attribution of performership in respect of a live or recorded performance is infringed if a person does, or authorises the doing of, an attributable act in respect of the performance without the identification of the performer as a performer in the performance, unless it was reasonable in the circumstances not to identify the performer. The Copyright Act lists factors that are taken into account in determining whether it was reasonable in particular circumstances not to identify the performer of a performance.
Infringement of the right against false attribution
Where a person does an act of false attribution in respect of a work, film or performance they infringe the author’s or filmmaker’s right not to have their authorship falsely attributed or the performer’s right against having their performership falsely attributed.
Infringement of the right of integrity
Where a person subjects the work or film, or authorises the work or film to be subjects, to derogatory treatment, an infringement of the author’s or filmmaker’s right of integrity of authorship in respect of the work or film has occured. Further, the right of integrity in literary, dramatic and musical works is infringed if a person does any of the following in respect of the work as so derogatorily treated:
- reproduces it in a material form
- publishes it
- performs it in public
- communicates it to the public, such as by making it available online
- makes an adaptation of it.
For artistic works that have been subjected to derogatory treatment, a person infringes the author’s or filmmaker’s right of integrity of authorship in respect of the work if the person does any of the following in respect of the work as so derogatorily treated:
- reproduces it in a material form
- publishes it
- communicates it to the public, such as by making it available online.
An infringement of a filmmaker’s right of integrity in respect of the film occurs where a person does any of the following in respect of the film as so derogatorily treated:
- makes a copy of it
- exhibits it
- communicates it to the public, such as by making it available online.
Although, it is not an infringement of the right of integrity if the derogatory treatment or other action was reasonable in the circumstances. There are a number of factors outlined in the Copyright Act that are taken into account in determining whether it was reasonable in all the circumstances to subject the work or film to the treatment. There are also certain treatment of works outlined in the Act that do not constitute an infringement of an author’s right of integrity of authorship.
A person infringes a performer’s right of integrity of performership in respect of a live or recorded performance if they subject the performance, or authorise the performance to be subjected, to derogatory treatment, unless the derogatory treatment or other action was reasonable in the circumstances. The Copyright Act outlines factors that are taken into account in determining whether it was reasonable in all the circumstances to subject the performance to the treatment.
If a live performance affected by derogatory treatment has become a recorded performance or if a recorded performance has been subjected to derogatory treatment, then a person infringes a performer’s right of integrity of performership in respect of the live performance or the recorded performance if the person does any of the following in respect of the recorded performance:
- makes a copy of it
- communicates it to the public
- causes it to be heard in public.
Other infringements of moral rights
Where a person sells or distributes for the purpose of sale an article and they knew, or ought reasonably to have known, was an infringing article an infringement of moral rights of authorship or performership has occurred. Similalry, moral rights are also infringeed by importing into Australia an article for the purpose of selling or distributing for the purpose of selling the article where the importer knew, or ought reasonably to have known, that it would have been an infringing article if it had been made in Australia.