Have you recently completed your novella’s first draft? Are you nearing 100,000 followers on your Instagram account as a street-style photographer? If copyright attaches to your creative works, you have exclusive rights to use and commercially exploit your work. But how should you respond to copyright infringement? Below, we provide some practical tips if someone is using your original works without your permission.

Is the Material Subject to Copyright Protection?

In Australia, copyright is automatic, and there is no registration process. Consequently, any original literary, dramatic, musical or artistic work expressed in a material form attracts protection. You must also be an Australian resident or citizen, and the original work must be made or first published in Australia.

Australia is also signatory to several international agreements including the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). For all countries that are parties to the convention, the same copyright protections for original works are offered to all citizens and residents of those countries. So if you create something original in Australia, the copyright in your work will also subsist in other convention countries. However, you must refer to the national or local law of the countries in which you intend to enforce your copyrights, as they may differ slightly.

Notably, copyright does not protect logos or names that distinguish a business. You will need to register these, usually as a trade mark, before you can enforce your rights against infringers.

Was the Work Copied Substantial?

Once you have established that your work is subject to copyright protection, you must then show that the copying was “substantial”. Courts in determining whether the copying was substantial will assess the quality and quantity of the copied work. 

For example, if an alleged infringer has copied a significant portion of the work but the work is mostly unoriginal, then a Court might say there is no infringement. Similarly, if an alleged infringer has copied a small but distinctive portion of the work, infringement is likely to have occurred.

What are the Exceptions to Copyright?

There are, however, exceptions to copyright notably:

  1. Fair Dealing
  2. Copying work in the public interest.

The Copyright Act 1968 (Cth) (the Act) defines fair dealing and includes:

  • Research or study;
  • Criticism or review;
  • Parody or satire; and
  • Reporting the news.

If you are certain that someone has infringed your copyright, you should consider what avenues are available to enforce your rights. 

Step 1: Contact Your Infringer

Creators must actively police their work for infringement. It’s sensible first to contact the alleged infringer and ask them to remedy the situation. If you have published your work on a social media platform (e.g. Facebook or Instagram), the website’s administrator typically provides an online procedure in which you can lodge a complaint of copyright infringement. You can also contact the search engine and request the work be taken down.

Step 2: Send a Cease and Desist Letter

If you are unsuccessful in your attempts to contact the infringer, you should contact a lawyer to help you draft a cease and desist letter. A cease and desist letter will enable you to tell your offender formally to stop reproducing your work and have it removed or taken down.

You might even request they pay you for using your works. The letter should specify a reasonable timeframe in which you expect a response and should conclude with a warning that legal consequences may follow should they fail to take steps to address your concerns.

Key Takeaways

If you are an author or creator, the onus falls on you to police and enforce your intellectual property rights. It’s important that if you suspect someone is using your work without permission that you reach out immediately and ask them to stop. If you have any questions about how you can enforce your rights, get in touch with our IP lawyers on 1300 544 755. 

Esther Mistarz

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