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Copyright infringement and how to avoid it

It’s no great revelation that copyright infringement is widespread. And we often read about the type of conduct that will amount to copyright infringement.

A recent example is the accusations of copyright infringement against multiple organisations, such as the NRL and AFL, for their use of the Aboriginal Flag.

So, what is copyright infringement?

Put simply, copyright infringement occurs where an original work (in which copyright subsists) is substantially reproduced, without the permission of the copyright owner. So, what is a substantial part?

Substantial Part

What amounts to a substantial part is a matter of quality rather than quantity. In short, if a key or distinct part of an original work is reproduced, without permission, then that is likely to be a substantial part.  Despite what you may have heard, changing an original work by 10% (or any other amount) is not a way to avoid copyright infringement. The court will look at whether the essence of the work has been reproduced.

This applies even if the part copied is only a small feature of your own work. A key example of how this rule plays out can be found in the iconic Men at Work case.

Men at Work

In 2010, Men at Work were found to have infringed upon Larrikin Music Publishing’s copyright in the musical work ‘Kookaburra Sits in the Old Gum Tree’. This original Aussie jingle is only a four-bar tune. The court decided that it’s essence, or substantial part, could be found in just two bars.

The Men at Work single that was found to have infringed upon Larrikin’s work, was the equally iconic song ‘Down Under’. More specifically, infringement was found in the flute riff that introduces the Aussie classic. Given this song is three minutes and forty-two seconds long, the two bars reproduced were not a large feature of Men at Work’s song.

The court found that despite the differing harmony, key and rhythm, the substantially similar melody was enough to reproduce the essence of ‘Kookaburra Sits In The Old Gum Tree’. This case demonstrates the emphasis that courts place on whether the essence of an original work is present, regardless of how it features in the secondary work.

This may be concerning to creatives producing new works. The world is constantly churning out new ideas and it’s likely that you may accidentally copy a part of somebody else’s work, without even knowing it. However, there is an additional requirement that protects creatives from being liable for such an accident – the requirement of a causal connection.

Causal connection

Causal connection essentially means that the offending party must have had access to the original work to be seen as copying it. This is a relief for creatives, as it limits liability to works you’ve actually come into contact with and know about.

For hugely popular works like ‘Kookaburra Sits In The Old Gum Tree’, a causal connection is presumed. Where the work is less well known, the court will require evidence to show that the person accused has actually had access to the original.

Exceptions

There are some exceptions to copyright infringement, including:

  • Fair dealing;
  • Private uses;
  • Educational uses;
  • Judicial proceedings;
  • People with disabilities; and
  • Libraries, galleries and museums.

These exceptions allow a person to copy an original work, without asking for permission. They are quite specific and are set out in the Copyright Act. If you make any other unauthorised use of another person’s work, then you run the risk of copyright infringement.

Also, it’s important to note that merely attributing a person with authorship of an original work will not provide you with a defence to copyright infringement. You must show that a defence applies. Given the narrow application of the defences, if you intend to rely upon any defence to copyright infringement, then you should first seek professional advice.

Fair dealing

The fair dealing defence in Australia applies to uses for a specific purpose. The purposes recognised under the Copyright Act are:

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

The Australian fair dealing exception does not simply apply a set of ‘fairness principles’ to a work. Instead, each fair dealing exception has detailed tests for, whether or not, a use will be covered by the exception.

The educational use exception, for example, allows researchers to freely copy a reasonable portion of any work. Usually this means 10% of the work can be used, or if a book, a chapter of the work.

Whereas, the criticism or review fair dealing exception, focuses on the actual nature of the use. For example, the TV show ‘The Panel’ were found to be infringing copyright when they presented funny videos for a cheap laugh. However, when the hosts of ‘The Panel’ actually critiqued and discussed the clips they showed, their use was covered by the criticism or review exception.

Each fair dealing exception has its own set of principles you need to satisfy. Before using a portion of another’s work and assuming it will be alright, it may be wise to consult somebody educated in copyright law, to save you from legal trouble later on.

Private Uses

Australia’s copyright law also provides some exceptions for private uses. One example of private use is the ‘space shifting’ of music – where you burn a CD you have purchased, so you can play the song on another device. Another, is the ‘time shifting’ of broadcasts – where you record a TV show, or song off the radio, for use at a later time. Again, there are rules around each form of private use.

Final word

Ultimately, Australia’s copyright law is a specific and detailed set of laws. Given its complexity, the most important recommendation a copyright lawyer can ever give is – IF IN DOUBT, LEAVE IT OUT!

Now, any questions?