You’ve finished writing a blog post and are scouring the internet for an image. However, you should take care to avoid innocent copyright infringement or face severe penalties.

Under the Copyright Act 1968 (the Act), copyright is the exclusive right to reproduce the work in a material form, publish the work and communicate the work to the public. Copyright subsists in original artistic works, including photographs.

Unless the author of the work has assigned their rights, they will be the copyright owner. When another person uses the work with the owner’s permission, they will likely infringe copyright.

What are Moral Rights?

Moral rights refer to an artist’s personal right to control the use of their work and enforce the integrity of their work, namely:

  • The right to attribution;
  • The right against false attribution; and
  • The right 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 (sections 40-42 of the Act), which covers uses for:

  • research or study;
  • criticism or review;
  • parody or satire; and
  • reporting of news.

What is Innocent Copyright Infringement?

Under section 155(3) of the Act, a copyright owner will not be entitled to damages but instead, can claim an account of profits when:

  • they can establish copyright infringement; and
  • the infringer had no reasonable grounds for suspecting they were infringing copyright.

It is usually difficult for the infringer to rely on this defence unless they can provide evidence of the enquiries they made to confirm that their use of the photograph did not constitute copyright infringement.

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 in the photograph. Merely asserting the infringement was inadvertent and that you did not know copyright would protect the image will not satisfy the requirements of section 115(3).

How Will the Court Assess Damages?

The court will commonly assess damages for copyright infringement according to the licence fee that the infringing party should have paid the copyright owner to use the copyright material. The licence fee payable will depend on how the artist licences their work, which may be different based on the type of use. For example, an artist may only charge a one-off fee for a royalty-free licence or personal use of work and may charge other separate fees for commercial purposes depending on how the user will use the image and the duration of use.

Where the court finds that copyright infringement has occurred under section 115 of the Act, the court may award additional damages under subsection (4) having regard to further factors, including:

  • the flagrancy of the infringement;
  • the need to deter similar infringements of copyright; and
  • the 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. You can be subject to an account of profits or damages from the copyright owner. If you have any questions about copyright infringement, get in touch with our intellectual property lawyers on 1300 544 755.

Emma George

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