Copyright infringement can occur even unintentionally. For instance, you might publish an image on a blog post you found on the internet. Unfortunately, in some cases, this can fall under copyright infringement. Therefore, you should always take great care to avoid innocent copyright infringement, as you can face severe penalties for a claim against you. This article will discuss what innocent copyright infringement is.
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What is Copyright?
Copyright is the exclusive right afforded to creators to manage how their creations and works are:
- reproduced;
- published; and
- communicated to the public.
Unless the work’s author assigns their rights to another person, they will be the copyright owner. Therefore, when another person uses the work without the owner’s permission, they will likely infringe the owner’s copyright.
What are Moral Rights?
Moral rights refer to an artist’s right to control the use of their work and enforce the integrity of their work, namely the right:
- to attribution;
- against false attribution; and
- against derogatory treatment.
These rights are in addition to an owner’s commercial rights. A court may award remedies such as damages where another person infringes an artist’s moral rights.
There are limited exceptions to copyright infringement in Australia, including fair dealing, which covers uses for:
- research or study;
- criticism or review;
- parody or satire; and
- reporting of news.
What is Innocent Copyright Infringement?
If you infringe an artist’s copyright, you could be liable to pay damages or provide an account of profits. Damages are a payment for compensation for the unauthorised use of their works. In contrast, an account of profits is a payment of any profits a person may have made due to unauthorised use of their works. The Act provides some partial protection for those who innocently infringe another person’s copyright.
Under the Act, where an innocent infringement occurs, a copyright owner will not be entitled to damages if:
- they can establish copyright infringement; and
- the infringer had no reasonable grounds for suspecting they were infringing copyright.
However, the copyright owner will still be entitled to claim an account of profits.
To establish that you had no reasonable grounds for suspecting the use of the photograph would amount to copyright infringement, you will need to describe what investigative steps you took to ascertain the ownership of the photograph. Merely asserting the infringement was inadvertent and that you did not know copyright would protect the image is insufficient.
How Will the Court Assess Damages?
The court will commonly assess damages for copyright infringement according to the licence fee the infringing party should have paid the copyright owner to use the copyrighted material. The licence fee payable will depend on how the artist licenses their work, which may differ based on the type of use.
Where the court finds that copyright infringement has occurred, the court may award additional damages having regard to further factors, including the:
- flagrancy of the infringement;
- need to deter similar infringements of copyright; and
- conduct of the defendant after the Act.
Key Takeaways
Copyright is a complex area of law, and it can be a potential minefield. If you are uncertain about the ownership of the photograph, it is advisable to steer clear of it. On the other hand, if you innocently infringe a copyright owner’s copyrighted material, you may be subject to an account of profits or damages from the copyright owner. Therefore, it is best to reach out to a lawyer to seek legal advice on the matter.
If you have any questions about copyright infringement, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Copyright refers to the automatic protection of the expression of original ideas. Copyright does not protect the ideas themselves. Rather, it is the material expression of the ideas that are protected.
It is usually difficult for an infringer to rely on the defence of innocent copyright infringement. However, you may provide evidence of enquiries and investigative steps you took to confirm that your use of an original work did not constitute copyright infringement.
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