If you compose a piece of music, paint a portrait or write the code for a software program, it is likely that you are the owner of a type of intellectual property called copyright. As the copyright owner, you have the exclusive right to use your property and, if someone else uses your property without your permission, you are entitled to a range of legal remedies against them. A copyright owner can bring an action for copyright infringement under the Copyright Act 1968 and seek a range of remedies, including damages or an account of profits.

First Things First – Damages or an Account of Profits?

The remedy of damages focusses on the loss suffered by the copyright owner. Damages under the Copyright Act are intended to compensate the copyright owner for loss caused by copyright infringement. Additional damages may also be awarded based on a range of factors, such as the flagrancy of the infringement and the need for deterrence.

By contrast, an account of profits focusses on the gains made by the person who has infringed copyright. Through an account of profits, the copyright owner claims the profits that a person has made by infringing copyright.

Importantly, a copyright owner cannot claim both damages and an account of profits. If they commence an action for copyright infringement, they must choose which remedy to seek against the infringing party. Additional damages are not available if the copyright owner claims an account of profits.

Injunctions and Other Court Orders

Apart from the monetary awards of damages or an account of profits, a court can also make a range of other orders in cases of copyright infringement, such as injunctions, freezing orders and search orders.

An injunction is an order of a court compelling a person to do something or restraining them from doing something. For example, under the Copyright Act, a photographer may seek an injunction stopping someone from using their photographs without permission.

A search order (also known as an “Anton Piller order”) is a court order that enables a copyright owner to inspect and remove evidence of copyright infringement from another person’s premises. Search orders are often made in conjunction with freezing orders (also known as “Mareva” orders), which aim to prevent a person from removing their assets from the reach of remedies for copyright infringement.

Infringing Copies

Section 116 of the Copyright Act enables a copyright owner to bring an action for conversion or detention in relation to infringing copies of copyright works and devices that are used to make infringing copies.

In effect, this means that the copyright owner is treated as the owner of the infringing works (and any device used to make infringing work) and has rights over this property. However, a court cannot grant additional remedies under section 116 if the relief granted under section 115 is sufficient.

Other Remedies for Copyright Infringement

Some copyright owners – such as authors, composers, painters, photographers, and film-makers – also have moral rights under the Copyright Act including the right to accreditation as the copyright work’s author.

For example, if someone uses a song without identifying the composer, that person may have infringed the composer’s moral rights of attribution. In this case, the composer may be entitled to seek the following: 

  • An injunction, 
  • Damages, 
  • A declaration that the composer’s moral rights have been infringed, and
  • A public apology from the infringing party.

In addition to remedies under the Copyright Act, a copyright owner may have rights under consumer protection legislation and general property law:

  • Conduct that amounts to copyright infringement may breach consumer law in a range of ways. For instance, falsely representing that you are the copyright’s owner may amount to misleading conduct and contravene Australian Consumer Law.
  • As copyright is a category of intellectual property, copyright owners are entitled to the general law rights that are available to any person whose property has been interfered with.

***

If you think that someone has infringed your copyright, let us know. Our disputes lawyers can answer your questions and help you identify the remedies that you should seek. 

Thomas Kaldor

Ask Thomas a Question

If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.