If you are a creator, an artist or anyone who produces a creative work, you will be understandably concerned about copyright. As a creator, it’s important to know what the Copyright Act 1968 (Cth) (the Act) defines as infringement, as you will only be able to bring an action if a person or entity does something which falls within this definition. In this article, we’ll look into direct and indirect copyright infringement, then discuss some common issues arising from the interpretation of the Act. In this article, we’ll refer to creative works such as paintings, books and poems as ‘works’.
As a quick refresher, copyright is a bundle of rights to deal with a creative work. Copyright for literary, dramatic or musical work, artistic work and musical or dramatic work is set out in section 31 of the Act.
For literary, musical, or dramatic work, copyright protection is the right to reproduce, publish, perform, communicate or make an adaptation of the work. Copyright for an artistic work allows you to reproduce the work in a material form and to publish or communicate the work to the public.
Direct vs. Indirect Copyright Infringement
A person can infringe copyright directly or indirectly. Direct infringement occurs when a person, without your permission, does or authorises any act comprised in your copyright. By contrast, indirect infringement occurs where a person deals with materials that infringe copyright, rather than copying the articles themselves.
It’s the difference between a person making copies of prints and a person selling copies of prints – the first involves direct infringement and the second is indirect infringement.
You will directly infringe copyright where you substantially reproduce a work, authorise a copyright infringement or unconsciously copy work.
- Substantially reproducing another person’s work: This is when a person does an act exclusively comprised by a person’s copyright. For example, if you copy someone’s poems onto your blog without permission.
- Authorising copyright infringement: This is when you permit a person to infringe copyright. For example, you want to save money while buying Christmas cards, so you take a person’s designer Christmas card to the printers and ask them to reprint the card in bulk.
- Unconscious copying: You can also directly infringe copyright without the intention of doing so.
If you deal with an article or material which infringes copyright, such as by selling or importing the product, you are engaging in indirect infringement. For example, if you import and sell a scarf from China, which reproduces a designer’s brand, you may be infringing copyright.
Can You Avoid Copyright Infringement by Changing Work by 10%?
There is a common belief that if you change a work by 10% or another percentage, you can avoid copyright infringement. This proposition is not a copyright exception, is incorrect and has no legal basis. Logically, this also does not make sense as it is unclear what 10% of a work would be.
For example, if you changed an oil painting by 10%, do you change the dimensions of the painting by 10%, the colour gradient by 10%, or would 10% be a tiny but very distinctive part of the painting? The 10% can’t be used practically as a legal test to determine whether someone has infringed a work.
Does the Type of Copyright Infringement Impact My Rights?
Whether a person has directly or indirectly infringed copyright is important if the matter goes to court. Remedies for infringement of copyright can include:
- Injunctions to stop another person copying a work;
- An account of profits; and/or
- Delivery up of infringing articles.
When sentencing, the court will consider many factors, including whether copyright was directly or indirectly infringed, in determining which remedy to apply and the severity of the penalty.
Copyright is the right to reproduce, publish, perform, communicate or make an adaptation of a work. Direct copyright infringement involves actually copying a work, whereas indirect infringement involves dealing with an object which infringes copyright.
If you have any questions concerning copyright or believe someone has infringed your copyright, get in touch with our IP lawyers on 1300 544 755.