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.

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