Australia: Online copyright infringement: Are you a pirate?

The internet continues to make sharing and using images easy, making it dangerously simple to infringe copyright.

The recent Federal Circuit Court decision in Weller v Smith1 (Weller) is a timely reminder that images found online may be protected by copyright – and penalties apply for infringement. We provide three key tips to reduce your risk of copyright infringement online.

Australian courts have demonstrated a willingness to award damages for copyright infringements of online images.

In Tylor v Sevin,2 a web-only travel agency, Home Away Travel, used photographs it found online in its promotion of Hawaii. An American photographer, who operated a business of taking, selling and licensing his photographs as stock photos, learnt that the website had used his image. The travel agent was found to have "recklessly" breached the photographer's copyright in the photo and had to pay US$1,850 in compensation (the amount it would have had to pay to obtain use rights for the image) plus AUD$12,500 in additional damages (as a penalty and to act as a deterrent).

In the recent case of Weller, a business competitor intentionally used the photographer's images of jelly wrestling products. The judge found that a substantial award of additional damages under the Copyright Act was appropriate and awarded AUD$20,000 for the flagrant breach of copyright. He stated:

"Downloading or copying images from webpages on the internet is an easy thing to do. There is a need to send a clear message that doing so and using the images for commercial gain is... 'piracy' and that an infringer ought to be treated accordingly. There is a clear need for deterrence to prevent similar infringements of copyright."3


Just because an image is publicly available on a website doesn't mean it is available for you to use.

In the UK case of Walmsley,4 a teacher used photographs found on Google Images in a blog set up to communicate to her students. The judge emphasised that in this day and age "there is not really any excuse" for believing copyright may not exist in an image just because there is no copyright notice on it.

Before using any images found online, assess whether there is any permission or licence from the copyright owner to use the images. Remember each individual image (even from the one site) may have different terms attached to it, and copying may be prohibited.

You may find it easier to look for images which have embedded rights information (metadata containing information such as the title, creator, and licensing information) by looking for images licensed under Creative Commons.5


A copyright infringer can still be liable to pay damages, even if they don't use an image for a commercial purpose. In Walmsley, the teacher's use of photographs was on a blog maintained for students, and not associated with the school's commercial website which attracted students to the school. Regardless, the school still had to pay £1,000 in damages.

Law reform bodies have recommended that the Australian government create a "fair use" exception to copyright infringement6 which could allow people to use copyrighted material in a way that aligns with reasonable consumer expectations.

Whether a use is "fair" could take into account:

  • the purpose and character of the use (eg commercial or educational);
  • the nature of the copyrighted work;
  • the amount of copyrighted material used; and
  • how the use affects the potential market or value of the copyrighted work.

However, this is not yet the law in Australia. Therefore, only use copyrighted material in accordance with a licence granted to you, or within the current limited exceptions in the Copyright Act.


If you publish images online, you may be subject to laws of other jurisdictions. In general, this only applies when your website encourages people from the other country to engage with it – such as through language availability, the subject matter of the website, or the currency used.

Remember, if people could take copyright enforcement measures under other laws (such as the United States' Digital Millennium Copyright Act), you will want to ensure you meet the requirements of those laws.


Contrary to popular belief, the use of images on the internet, whether on social media or found through Google, is not a free-for-all. It is becoming increasingly easy for copyright-owners to find out who is re-publishing images in breach of their intellectual property rights, and courts are not inclined to afford leniency to those who disregard copyright.

Remember to check you have necessary permission, and get legal advice if you are unsure, before using, distributing or re-publishing images found online.


1 [2016] FCCA 2827.

2 [2014] FCCA 445.

3 Paragraph [137].

4 John Walmsley v Education Limited t/a Oise Cambridge 2014 WL 2194626 (Intellectual Property Enterprise Court, 13 March 2014).


6 See, eg, Australian Law Reform Commission report in February 2014, and the Productivity Commission's Draft Intellectual Property Arrangements Report released in April 2016.

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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

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”

Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions