Infringement of copyright

Where a person undertakes the infringing act themselves a direct infringement occurs.

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.

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.

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.

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.

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.