Australia: Contracting Out Of The Copyright Infringement Exceptions

Last Updated: 15 October 2007
Article by Bronwyn Lee

It is a misconception that material posted on the internet can be freely copied. In the context of the internet, owners of copyright material have the same exclusive rights, under the Copyright Act 1968 (Cth) (Act), as other copyright owners. By enabling users to access, copy and disseminate copyright material with ease, speed and precision, the internet has resulted in copyright owners (whose copyright material are available on the internet), being subjected to widespread flagrant breaches of their rights. As a result, some copyright owners are turning to contract law in an attempt to augment protection of their copyright material on the internet.

Through the use of website terms and conditions, copyright owners are able to define the permitted uses of their copyright material, and are also attempting to exclude or limit the use of copyright material, that would otherwise be deemed lawful under the Act. The success of this method (thus far) can be attributed to the nature of the internet – which lends itself well to mass contracting between copyright owners and internet users. While this phenomenon is appealing to copyright owners, placing control back in their hands, it simultaneously attempts to strip certain rights from users of copyright material.


The rights provided to copyright owners under the Act means that they have the exclusive rights (amongst others) to communicate the copyright material to the public and to reproduce such material. This means that, subject to the particular terms and conditions of the relevant website, copyright in material on the internet may be infringed by doing the following (by way of example) without the permission of the copyright owner:

  • printing material from a website;
  • cutting and pasting material from a website on to another site or into another document;
  • saving material from a website onto a hard drive or removable disk;
  • making the material available to other users via email or an intranet system; or
  • otherwise transmitting or communicating the material to the public.

Importantly, these exclusive rights are not unqualified.

Under the Act, infringement of copyright only occurs if the infringer deals with the whole or a 'substantial part' of the material. While the term 'substantial part' is not defined by the Act, case law has established that a substantial part may be any part that is important, distinctive, or recognisable, and not necessarily substantial in terms of length. It is ultimately a qualitative test.

There are also a number of 'fair dealing' exceptions to copyright infringement under the Act. The fair dealing exceptions include use of copyright material for research or study, criticism or review, parody or satire, reporting news or professional advice by a lawyer, patent attorney or trade marks attorney. The benefit of these exceptions is that they enable use of copyright material for limited purposes, without the need to obtain the licence or authorisation of the copyright owner.

But the Act is silent on whether or not copyright owners can use contract law to exclude or modify these exceptions to copyright. 

Website terms and conditions

Access and use of a website is often subject to terms and conditions of use that are displayed as a condition of accessing that site. These terms and conditions (where they form a contract between the website owner and user) are relevant in determining any additional, contractual restrictions that might be placed on the use of copyright material on the website.

Under Australian law, parties are free to contract unless expressly or impliedly prohibited by law. The Act gives copyright owners proprietary rights in their copyright material that they would not otherwise have, and other than under Part III, Division 4A of the Act (which deals with copyright in computer programs), the Act does not expressly prohibit copyright owners from contractually excluding or limiting the exceptions to copyright infringement granted under the Act to users of copyright material. As a result, other than in relation to computer programs, it would appear that parties are free to contract on any terms that they wish. This would enable copyright owners to impose contractual terms and conditions on users so as to limit or modify the availability of the copyright exceptions, or indeed to state that no copyright material can be used, even if it is less than a substantial part. It is not entirely clear whether a user of copyright material, when faced with an allegation of a breach of a contractual term, can raise the copyright exceptions under the Act in its defence. This is the subject of much debate.

For website terms and conditions to give rise to an enforceable contract, the user must have reasonable notice of contractual terms and conditions before the contract is entered into. Website terms and conditions commonly take the form of a ‘browse-wrap’ agreement, stating that the terms and conditions are deemed to be accepted when the user accesses and uses the website, but may also be imposed pursuant to a ‘click-wrap’ agreement (for example, in the form of a tick box stating that the user agrees to the website terms and conditions). The enforceability of browse-wrap agreements (and click-wrap agreements) has not been considered by courts in Australia. Click-wrap agreements have been upheld in the US and the EU. In both forms of agreement, the user has little choice but to either accept the terms and conditions, or not access the site. As a result, the online environment enables the owner to contract with users on a mass scale, with little scope for negotiation.

Copyright owners should understand that they may be able to protect their copyright material by placing more onerous restrictions on users than the Act provides. Indeed this capability is already being exploited by many Australian websites which prohibit the use of copyright material for any commercial purpose, even where such use does not constitute a substantial part, or would otherwise be classified as a fair dealing under the Act.

Future expectations

In keeping with the spirit of the Act, the balance between the rights of copyright owners and users of copyright material must be maintained. This ultimately poses the question of whether website terms and conditions attempting to limit the availability of copyright exceptions under the Act should be enforceable.

The difference between the digital and non-digital environment should be taken into account in answering this question. The ease, speed and precision with which copyright material can be electronically reproduced and communicated arguably necessitates the availability of greater protection for copyright owners who wish to make their copyright material available on the internet. Without it, the incentive to create new copyright material to be made available on the internet for the benefit of members of the public may diminish.

The recommendation of the Copyright Law Review Committee in its 2002 report, that the Act be amended to declare void any agreement seeking to limit or modify the copyright exceptions, has not been embraced by Parliament. Similarly the lack of judicial consideration in this area suggests that users of copyright material acknowledge the additional risks copyright owners face online and have largely accepted the more onerous conditions in return for the benefits of efficient access to an expanse of information and material. Yet, the continuing debate on this issue suggests that the issue is far from settled.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.