Copyright Comparative Guide

1 Legal framework

1.1 What legislative and regulatory provisions govern copyright in your jurisdiction?

In Australia, copyright is governed by the Copyright Act 1968 (Cth). The Copyright Act establishes a framework for copyright protection to exist in certain works and other subject matter.

Two regulations have been enacted under the Copyright Act:

• the Copyright Regulations 2017 (Cth), which provide for general matters relating to the operation of the Copyright Act; and
• the Copyright (International Protection) Regulations 1969 (Cth), which address matters concerning international copyright protection.

Various other declarations and notices are in force relating to specific matters under the Copyright Act, although these do not affect the protection afforded by the Copyright Act generally.

1.2 Is there common law protection for copyright in your jurisdiction?

In Australia, copyright protection is governed solely by the Copyright Act.

1.3 Do any special regimes apply to specific types of works or subject matter (eg, software; data and databases; digital works; indigenous works)?

The Copyright Act treats works and other subject matter differently:

• Part III of the Act protects 'works', being subject matter of a literary, dramatic, musical or artistic nature; and
• Part IV protects 'subject matter other than works', including:
• • sound recordings;
  • cinematograph films;
  • television broadcasts and sound broadcasts; and
  • published editions of works.

Computer programs are protected under the Copyright Act as literary works. This protects the source code and object code of the software in the same manner as other literary works. However, the Copyright Act also contains provisions which are specific to computer programs – for example, it includes various exceptions to the infringement of the copyright specific to computer programs (see Sections 47B–47F of the Copyright Act and question 3.2).

However, as the Copyright Act covers original compilations and tables as literary works, copyright does 'protect' databases to some extent. In particular, in certain circumstances, it is not the data or the information itself that receives protection, but rather the particular the arrangement of the data. The position in Australia is highlighted by IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458, which confirms there must be sufficient human intellectual effort exerted to compile the data in material form in order for copyright to subsist in the database.

1.4 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have relevance for copyright protection?

Australia is party to bilateral and multilateral treaties, including (among others):

• the Berne Convention for the Protection of Literary and Artistic Works 1886;
• the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994;
• the Universal Copyright Convention;
• the World Intellectual Property Organization Copyright Treaty; and
• the Australia-United States Free Trade Agreement.

These treaties represent multilateral commitments by each member to implement copyright protection through national legislation.

1.5 Which bodies are responsible for implementing and enforcing the copyright regime in your jurisdiction? What is their general approach in doing so?

The Department of Infrastructure, Transport, Regional Development, Communications and the Arts is responsible for:

• managing the Copyright Act; and
• administering copyright policies and legislation.

The department ensures that copyright laws are up to date and communicated to the public effectively.

The Copyright Tribunal resolves disputes related copyright licensing. The Australian Competition and Consumer Commission is an independent Australian government agency that has developed guidelines to assist the Copyright Tribunal in determining remuneration for copyright licences and licensing schemes.

The Australian Federal Police (AFP) is the principal law enforcement agency tasked with the provision of police services in relation to Commonwealth laws (as opposed to state or territory laws), including the Copyright Act.

The AFP work with other enforcement bodies, such as the Australian Border Force, which aims to prevent the importation of counterfeit and pirated goods into Australia.

Australia's approach to copyright enforcement is multifaceted, applying legislation, dispute resolution mechanisms and law enforcement to ensure that copyright laws are adhered to.

2 Copyrightabilty

2.1 What types of works qualify for copyright protection in your jurisdiction?

The Copyright Act prescribes that the following types of works qualify for copyright protection (Sections 10(1) and 31):

• Part III works, being:
• • literary works (includes compilations, computer programs and anthologies);
  • dramatic works (includes screenplays and choreography);
  • musical works; and
  • artistic works (includes drawings, paintings, photographs); and
• Part IV subject matter, being:
• • cinematograph films;
  • sound recordings;
  • television and sound broadcasts; and
  • published editions of literary, dramatic, musical or artistic works.

2.2 What are the requirements for copyrightability?

Copyright can subsist in a recognised category of protected subject matter as outlined in question 2.1.

For Part III works, they must be:

• in material form, such that they are expressed in a tangible format;
• original, meaning that they are not copied from another author and reflect the author's own intellectual effort, or otherwise where there is sufficient originality in their creation; and
• created by an author who is a qualified person at the time of creation, being an Australian citizen or resident of Australia (or by individuals of other countries which are signatories to relevant international treaties).

Part IV subject matter other than works is subject to a different regime based on the subject matter. For example, for copyright to subsist in a sound recording, it must be:

• made by a qualified person at the time of recording, being:
• • an Australian citizen or resident of Australia (or by individuals of other countries which are signatories to relevant international treaties); or
  • a body corporate incorporated under Australian laws;
• made in Australia; or
• first published in Australia.

2.3 What types of works are ineligible for copyright protection in your jurisdiction?

Copyright protects the original expression of ideas or information, not the ideas or information itself.

Content will be ineligible for copyright protection where it does not fall within the categories of protected works (or 'subject matter other than works'), including where the subject matter fails to meet the requirements of being original and in material form. For example, single words such as titles and names are not substantive enough to qualify for copyright protection.

3 Scope of protection

3.1 What legal rights are conferred by copyright in your jurisdiction?

Copyright confers exclusive rights on the owner of Part III works to:

• reproduce the work in material form;
• publish the work;
• make adaptations of the work; and
• perform and communicate the work to the public.

These rights extend to the various types of recognised categories of works, including literary, dramatic, musical, artistic, sound recordings and computer programs, as specified in Section 31(1) of the Copyright Act.

Part IV works have a different regime based on the subject matter. For example, copyright protection in a sound recording confers on the owner the exclusive rights to:

• make a copy of the sound recording;
• communicate or cause the recording to be heard in public; and
• enter into a commercial rental arrangement in respect of the recording (Section 85).

3.2 Are there special rules that limit the scope of protection for works that are useful/utilitarian/functional in your jurisdiction?

As a general rule, the Copyright Act protects works and other subject matter regardless of their useful/utilitarian or functional nature.

However, there are several defences that can limit the scope of copyright protection for such works. For example, the Copyright Act includes specific exemptions for the copyright infringement of computer programs, including:

• reproduction for normal use or study of computer programs (Section 47B of the Copyright Act);
• reproducing computer programs to make interoperable products (Section 47D of the Copyright Act);
• reproducing computer programs to correct errors (Section 47E of the Copyright Act); and
• reproducing computer programs for security testing (Section 47F of the Copyright Act).

The overlap between copyright and design law also limits the copyright protection available for artistic works. Where an artistic work is embodied in in three-dimensional product which is mass produced (typically, industrial articles), reproducing that artistic work by the production of those three-dimensional products is no longer an infringement of copyright (Sections 75 and 77 of the Copyright Act). In such cases, the artist's or designer's protection is effectively limited to registered design rights.

3.3 Are neighbouring rights protected in your jurisdiction? If so, please outline the applicable regime.

There are neighbouring rights which relate to the public performance, broadcasting and reproduction of a sound recording. Where a sound recording is performed in public, the artist, performer, producer and record label are paid neighbouring rights in the form of royalties. These royalties are generally collected by:

• the Phonographic Performance Company of Australia (PPCA); or
• the relevant holder of the rights directly.

The PPCA distributes the royalty fees to licensors and featured Australian artists registered with the PPCA via its Artist Direct Distribution Scheme.

3.4 Are moral rights protected in your jurisdiction? If so, please outline the applicable regime.

Moral rights are protected in Australia, being:

• the right of attribution of authorship, which refers to the right to be named in connection with the work (Section 195AO of the Copyright Act);
• the right against false attribution of authorship, which ensures that authorship of the work is not misrepresented (Section 195AP of the Copyright Act); and
• the right of integrity of authorship, which refers to the right to object to treatment of the authors work that has a detrimental impact on the author's reputation (Section 195AQ of the Copyright Act).

Moral rights automatically arise upon the creation of copyrighted work, but do not apply in the same manner to:

• sound recordings;
• television and sound broadcasts; or
• published editions.

The moral rights are personal to the author and are not capable of assignment. The duration of the moral right depends on the type of work and the particular right it relates to, as follows:

• For cinematograph films, the right of integrity of authorship continues until the author dies;
• For works other than cinematograph films, the right of integrity of authorship continues until copyright ceases to subsist; and
• An author's moral rights (other than the right of integrity) continue until copyright ceases to subsist.

3.5 Are any blanket exceptions to copyright infringement (eg, fair use/dealing) or specific exceptions to copyright infringement (eg, backup copies, interoperability, right of repair) available in your jurisdiction? If so, under what conditions do they apply?

Australia does not have a broad fair use exemption, but there are several specific fair dealing exemptions to copyright infringement:

• fair dealing with a literary, dramatic, musical or artistic work or adaptation of such works for the purposes of research or study (Section 40 of the Copyright Act);
• fair dealing with a literary, dramatic, musical or artistic work or adaptation of such works for the purposes of criticism or review, provided that a sufficient acknowledgement of the work is made (Section 41 of the Copyright Act);
• fair dealing with a literary, dramatic, musical or artistic work or adaptation of such works, where this is for the purpose of parody or satire (Section 41A of the Copyright Act); and
• fair dealing with a literary, dramatic, musical or artistic work or adaptation of such works for the purpose of reporting of news in a newspaper or magazine:
• • where sufficient acknowledgement of the work is made; or
  • for the purposes of the reporting of news by means of a communication or in a cinematograph film (Section 42 of the Copyright Act).

There are other specific exceptions in Sections 43–47J of the Copyright Act. For example, the reading or recitation in public, or the inclusion in a sound broadcast or television broadcast of a reading or recitation, of an extract of reasonable length from a published literary or dramatic work or adaptation does not constitute an infringement of the copyright in the work if a sufficient acknowledgement of the work is made (Section 45 of the Copyright Act).

3.6 How are derivative works protected in your jurisdiction? Who is the owner of a derivative work?

In Australia, works deriving from other works can be protected in two ways. First, incorporating an existing work into a new work could create a new copyright provided that it meets the requirements of the Copyright Act, specifically originality. Permission must be sought from the owner of the existing work where a substantial part of that work is taken.

Second, the Copyright Act specifically protects derivative works, referred to as 'adaptations'. Pursuant to Section 10 of the Copyright Act, an 'adaptation' means:

• in relation to a literary work in a non-dramatic form, a version of the work in a dramatic form;
• in relation to a literary work in a dramatic form, a version of the work in a non-dramatic form;
• in relation to a literary work being a computer program, a version of the work not being a reproduction of the work;
• in relation to a literary work:
• • a translation of the work; or
  • a version of the work in which a story or action is conveyed solely or principally by means of pictures; and
• in relation to a musical work, an arrangement or transcription of the work.

The right to create an adaptation of a work is an exclusive right of the copyright owner. The owner of the copyright in the adaptation is generally the author of the adaptation.

3.7 Can copyrightable works also be protected by other IP rights (eg, trademarks and designs) in your jurisdiction?

Copyrightable works can also be protected by other forms of IP protection, including registered trade marks and registered designs.

For example, a logo may be considered an artistic work in which copyright subsists in, but it may also be eligible to be registered as a trade mark under the Trade Marks Act 1995 (Cth). Trade mark registrations confers the exclusive right to use the logo as a trade mark (generally, as a 'badge of origin') in relation to the goods and services covered by the registration. Trade marks can be renewed for indefinite periods of 10 years each.

The Designs Act 2003 (Cth) grants protection to the design or visual appearance in an article including the features of ornamentation, shape or pattern applied to the article. As mentioned in question 3.2, the overlap between copyright and design law limits the copyright protection available for artistic works in certain circumstances. Section 75 of the Copyright Act states that where copyright subsists in an artistic work and a corresponding design is or has been registered under the Designs Act, it is not an infringement of that copyright to reproduce the work by embodying that corresponding design in a product. Additionally, Section 77 provides a further defence where the design of an artistic work has been industrially applied. These provisions ensure that design registration, rather than copyright, essentially governs the protection of functional and mass-produced items.

4 Duration, publication and renewal

4.1 When does copyright protection in a work begin and end in your jurisdiction? Are there any proactive maintenance or other requirements to benefit from a full term of protection?

There is no system of registration for copyright protection in Australia. Copyright automatically subsists upon the creation of the original work in material form.

Generally, the duration of copyright protection is:

• 70 years after the death of the author for works (Section 33(2) of the Copyright Act);
• 70 years after the death of the last joint author for works of joint authorship (Section 80 of the Copyright Act);
• 70 years after sound recordings and films are made public (if within 50 years of their creation) or, if not made public, 70 years after they were made (Section 93 of the Copyright Act);
• 50 years after a television broadcast or sound broadcast was made (Section 95 of the Copyright Act); and
• 25 years after the end of the year of first publication for published editions of works (Section 96 of the Copyright Act).

There are no proactive maintenance or other requirements to benefit from a full term of protection.

4.2 What is required for a work to be published in your jurisdiction?

A literary, dramatic, musical or artistic work will be deemed to have been published if reproductions have been supplied to the public, whether through sale or other means (Section 29(1)(a) of the Copyright Act).

A cinematograph film will be deemed to have been published when copies have been sold, hired or offered for sale or hire to the public (Section 29(1)(b) of the Copyright Act).

Similarly, a sound recording will be deemed to have been published if records embodying the recording have been supplied to the public, whether through sale or other means (Section 29(1)(c) of the Copyright Act).

However, the performance or supply to the public of a literary, dramatic, or musical work, the exhibition of artistic works, the construction of a building and the supply of photographs or engravings do not constitute publication under the Copyright Act (Section 29(3)). Unauthorised publication will also be disregarded (Section 29(6)).

4.3 Can copyright protection be renewed or extended in your jurisdiction? If so, how?

Copyright in Australia cannot be renewed, as the work falls into the public domain once it expires and is free to be used.

5 Ownership

5.1 Who can qualify as the owner of a copyrighted work in your jurisdiction? Are there any provisions that deem an owner to be a person other than the author?

The Copyright Act treats works and other subject matter separately.

The owner of copyright in a Part III work is generally the author of the work. However, there are some exceptions to this rule. For example:

• where a literary, dramatic or artistic work is made by an employee or apprentice of a newspaper or periodical owner for inclusion in the newspaper or periodical, there is a mixed ownership position relating to different exclusive rights under Section 35(4);
• where a person pays another to take a photograph for private or domestic purposes, to paint or draw a portrait or to make an engraving, the person making payment is generally the owner;
• pursuant to Section 35(6) of the Copyright Act, an employer owns copyright authored by an individual in pursuance of the terms of their employment, unless the relevant employment contract modifies or excludes this rule; and
• where a work is created under a contract for services, ownership depends on the terms of the contract, which may deem a party other than the author to be the owner upon creation.

Ownership of Part IV subject matter depends on the type of subject matter. For example, for a sound recording, the owner is the maker or the person that paid the maker to make that sound recording (except where agreed otherwise).

5.2 Is corporate, joint or collective ownership of copyrighted works recognised in your jurisdiction? If so, in what circumstances?

For a Part III work, the author must be one or more natural individuals. This permits joint ownership of these works for joint authors. The Copyright Act defines a 'work of joint authorship' as "a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors".

Corporate ownership of Part III works is possible where ownership is held by someone other than the author – for example, where an employer is a company and owns copyright authored by an individual in pursuance of the terms of their employment.

Part IV specifically permits bodies corporate to be considered the 'maker' of a Part IV subject matter in which copyright subsists. It further specifically addresses joint ownership in for sound recordings and films.

5.3 Can ownership of a copyrighted work be transferred in your jurisdiction? If so, how? Are any copyrights, moral rights, neighbouring or related rights inalienable? If so, how can such rights be dealt with (eg, exclusive licence, waivers)?

Copyright is personal property and is transmissible by assignment, by will and by devolution by operation of law (Section 196 of the Copyright Act). An assignment of copyright does not have effect unless it is in writing and signed by the assignor (Section 196(3) of the Copyright Act). An assignment of copyright can include restrictions – for example, by geographic location or the exclusive rights which are assigned.

Moral rights are inalienable and cannot be transferred, as they are granted to authors and performers personally. While moral rights cannot be waived, authors may provide consent for specific uses that might otherwise infringe their moral rights. However, the enforceability of broad or general consent is limited, particularly outside of an employer-employee relationship. In commercial contracts, terms are often included to define the scope of consent regarding moral rights to ensure clarity around their application.

5.4 Where a work is created by an employee, what are the rules regarding ownership? What measures can an employer take to secure its rights to intellectual property created under an employment relationship?

As mentioned in question 5.1, an employer owns copyright authored by an individual in pursuance of the terms of their employment unless there is an agreement that states otherwise. An employer can ensure that their employment contract includes a term that it owns the intellectual property created during the course of employment.

There can sometimes be questions regarding when copyright is created 'during the course of employment'. It is therefore important to ensure that the employment agreement:

• sets out the scope of employment in broad terms; and
• is updated where the employee changes roles within the organisation.

5.5 Where a work is created by a contractor, what are the rules regarding ownership? What measures can a hiring party take to secure its rights to intellectual property created under a contracting relationship?

The contractor will own the copyright which it, or its employees, author during the course of providing contracting services. This is subject to certain exclusions such as, where a photograph a painting or drawing of a portrait or the making of an engraving is commissioned for a fee, the contractor will own the copyright in the work unless there is an agreement that says otherwise (Section 35(5) of the Copyright Act).

The party which appoints the contractor will not have the right to exercise exclusive rights in the copyright, unless:

• the contract for services expressly assigns or licenses the copyright to the hiring party; or
• a term providing for the licensing of the copyright can be implied by the courts to give business efficacy to the contract for services.

Alternatively, an equitable assignment or licence of copyright may be found where the contract is silent on assignment or licensing. An equitable interest in copyright can arise in circumstances where formalities to effect legal assignment, such as the assignor's signature, have not been met.

Additionally, if there is no formal written contract, a licence of copyright may be inferred based on the objective intention of the parties at the time of entering into a verbal contract for services (Realestate.com.au Pty Ltd v Hardingham 277 CLR 115)

6 Registration

6.1 Is there a copyright registration system in your jurisdiction? If so, is registration mandatory?

N/A – see question 4.1.

6.2 What are the advantages of registration?

N/A – see question 4.1.

6.3 What legal presumptions, rights and entitlements are conferred by copyright registration?

N/A – see question 4.1.

6.4 What are the formal, procedural and substantive requirements for registration?

N/A – see question 4.1.

6.5 What fees does the governing body charge for registration? Do these vary depending on the type of work?

N/A – see question 4.1.

6.6 Can copyright registration be refused? If so, on what grounds and what is the impact of refusal?

N/A – see question 4.1.

6.7 If copyright registration is refused, can the applicant appeal? If so, how?

N/A – see question 4.1.

6.8 Can the reviewing body's decision be appealed? If so, how?

N/A – see question 4.1.

7 Enforcement and remedies

7.1 What constitutes copyright infringement in your jurisdiction?

Copyright infringement of a Part III work occurs in Australia where a person that is not the owner of the copyright or without the licence of the owner does any act comprised in the copyright (Section 36(1) of the Copyright Act). This includes reproducing, adapting, communicating, performing, distributing or publishing the work. It is not necessary for the infringer to use all of the work to constitute an infringement, but rather a substantial part. The test of whether the infringer has taken a substantial part depends on the quality of what is taken rather than quantity.

7.2 Is secondary liability for copyright infringement recognised in your jurisdiction? If so, how is it incurred? Are safe harbours afforded to intermediaries or others? If so, what are the requirements for such safe harbours to apply?

Secondary liability for copyright infringement is recognised in Australia. It can be incurred if a person sells or distributes a copyrighted item without the permission (ie, licence) of the copyright holder (Sections 38 and 103 of the Copyright Act). Additionally, articles imported and offered for sale or hire in Australia can infringe copyright if the making of the article in Australia would have constituted an infringement (Sections 37 and 102).

There are safe harbour provisions in the Copyright Act which protect:

• carriage service providers;
• organisations assisting persons with disabilities;
• libraries;
• archives;
• key cultural institutions; and
• educational institutions.

There are four categories of safe harbours, each covering different activities:

• Transmission: This applies to service providers offering facilities for transmitting, routing or providing connections for copyright material, including intermediate and transient storage during transmission (Section 116AC of the Copyright Act).
• Catching: This covers the automatic caching of copyright material by service providers, without manual selection, to improve access speed and reduce costs (Section 116AD of the Copyright Act).
• Hosting: This applies to service providers storing copyright material at the direction of users on their systems or networks (Section 116AE of the Copyright Act).
• Searching: This covers services that refer users to online locations using information location tools or technology (Section 116AF of the Copyright Act).

7.3 Is criminal enforcement of copyright law possible in your jurisdiction?

The Copyright Act outlines criminal offences related to copyright infringement and the penalties that apply for such offences.

For example, a person commits an offence if:

• it makes an article with the intention of:
• • selling it;
  • letting it for hire; or
  • obtaining a commercial advantage for profit; and
• that article is an infringing copy of a work or other subject matter.

The offence is punishable on conviction by a fine or imprisonment of not more than five years (Section 132AD of the Copyright Act).

Likewise, a person commits an offence if it:

• sells an article or lets an article for hire (Section 132AE of the Copyright Act);
• offers an infringing copy for sale or hire (Section 132AF of the Copyright Act);
• exhibits an infringing copy for sale or hire (Section 132AG of the Copyright Act);
• imports infringing copies commercially (Section 132AH of the Copyright Act);
• distributes an infringing copy (Section 132AI of the Copyright Act);
• possesses an infringing copy for commerce (Section 132AJ of the Copyright Act);
• makes or possesses a device for making an infringing copy (Section 132AL of the Copyright Act); or
• advertises the supply of an infringing copy (Section 132AM of the Copyright Act).

7.4 What is the statute of limitations for copyright infringement?

Pursuant to Section 134 of the Copyright Act, the statute of limitations is six years from the time the infringement took place or the infringing copy or device was made, as the case may be.

7.5 Who has standing to bring copyright claims?

The owner of the copyright (Section 115(1) of the Copyright Act) or exclusive licensee (Section 119 of the Copyright Act) has standing to bring an action for infringement.

7.6 What is the procedure for pursuing claims for copyright infringement, including usual timeframes for resolution? Are there any streamlined administrative procedures for handling disputes?

Before initiating legal proceedings, generally the copyright holder or exclusive licensee sends a letter of demand to the infringing party requesting it to stop the infringing activity. Alternative dispute resolution (ADR) may also be sought prior to commencing legal proceedings. Particularly if there is an agreement between the parties that stipulates the method for resolving disputes, mediation or other forms of ADR may assist the parties in reaching a solving the copyright infringement dispute. Otherwise, legal proceedings for copyright infringements may be brought in:

• the Federal Court; or
• the Federal Circuit and Family Court of Australia.

This may entail providing evidence and hearing witness testimony from both parties.

The Copyright Tribunal offers a streamlined process for resolving disputes related to copyright licences, royalties or remuneration payable under those licences. This is also a more accessible, cost and time-effective method for resolving such disputes compared to legal proceedings.

The timeframes for resolution can vary depending on the case and whether the parties opt for ADR or legal proceedings.

7.7 What fees and costs are usually incurred in infringement actions?

The costs can vary depending on the complexity of the case and the avenues taken. However, the common fees incurred in infringement actions include:

• the legal fees of lawyers or legal representatives such as barristers for:
• • providing legal advice;
  • drafting legal documents;
  • preparing evidence; and
  • representing the client in legal proceedings or ADR;
• court fees for filing a claim and initiating legal proceedings, including filing fees and hearing fees;
• expert witness fees for parties with complex issues; and
• disbursements, which are expenses incurred by legal personnel that are typically passed on to the client in addition to legal fees.

7.8 What typical defences are available to a defendant in copyright litigation?

A defendant may argue that:

• the infringement falls under the fair dealing exceptions discussed in question 3.5; or
• the copyright in an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast where its inclusion is only incidental to the principal matters represented in the film or broadcast (Section 67 of the Copyright Act).

The following specific exemptions are also included in Sections 43–53 of the Copyright Act:

• reproduction for the purpose of judicial proceedings or professional advice (Section 43);
• temporary reproductions that are made in the course of communication (Section 43A);
• inclusion of works in collections for use by places of education (Section 44);
• import of non-infringing books and sound recordings (Section 44A);
• reading or recital in public or for a broadcast (Section 45);
• reproduction for the purposes of broadcasting (Section 47);
• reproduction for normal use or study of computer programs (Section 47B); and
• back-up of computer programs (Section 47C).

A defendant may argue the innocent infringement defence, which results in the copyright owner not being entitled to damages where the defendant can establish that it was not aware and had no reasonable grounds to suspect that it was infringing copyright (Section 115(3) of the Copyright Act). An account of profit may still be granted to the applicant. The defendant bears the onus of establishing the defence. The defence is not typically available to a defendant that can show no more than a lack of awareness that the copyright was owned by the plaintiff (Golden Editions Pty Ltd v Polygram Pty Ltd [1996] FCA 141).

A defendant who is a teacher or student does not infringe copyright in a work if the copying occurs in the course of educational instruction (Sections 200 and 200AB of the Copyright Act).

7.9 What civil and criminal remedies are available against copyright infringement in your jurisdiction? Are customs enforcement measures available to halt the import or export of infringing works?

Criminal remedies: Criminal remedies for copyright infringement include fines and up to five years of imprisonment (Sections 132AD–132AS of the Copyright Act).

Civil remedies: A court may grant an injunction and either damages or an account of profits (Section 115 of the Copyright Act). The court may also award additional (pecuniary) damages as it considers appropriate in circumstances where the infringement is flagrant or wilful (Section 115(4) of the Copyright Act).

Mandatory injunctions and declaratory relief are often sought, such as including a notice to the public that copyright was infringed.

A court may order the destruction or delivery up of infringing copies of copyright (Section 133 of the Copyright Act).

Customs enforcement: Copyright owners can file a notice of objection to the comptroller-general of Customs to seize goods suspected of infringing copyright (Section 135 of the Copyright Act).

7.10 Are damages available for copyright infringement? Are statutory damages available, and if so, in what ranges? What factors will the court consider in determining the quantum of damages?

An account of profits or damages and additional damages are available for copyright infringement (Section 115). There is no fixed range of damages; they are awarded on a discretionary basis.

• An account of profits will result in the infringer being ordered to account for any profits derived from the infringement.
• Damages will result in the copyright owner being compensated for the losses suffered as a result of the infringement.
• Additional damages may be awarded in circumstances of flagrant or wilful infringement.

The factors considered by the court in determining the quantum of damages, particularly in relation to additional damages (Section 115(4)), include:

• the flagrancy of the infringement;
• deterrence;
• the defendant's conduct after the infringement occurred or after it was informed of the alleged infringement;
• whether the infringement involved a conversion from hard copy to digital form;
• the benefit to the defendant; and
• all other relevant matters.

7.11 What is the procedure for appealing a decision in copyright litigation?

The appeal process depends on the court before which the case is brought.

When appealing a decision of the Federal Circuit and Family Court of Australia, a notice of appeal must be filed within the prescribed time limit, which is 28 days. This must be filed with the court and served on the other party to the appeal within 14 days of filing. Within 28 days of filing the notice of appeal, the appellant must file a draft index to the appeal book and serve a copy on the other parties. The appeal will be listed for a procedural hearing where the judge or registrar makes orders to prepare for the appeal hearing. Within 14 days of the procedural hearing, if the respondent does not oppose the appeal, it may file a submitting notice. By the date ordered at the procedural hearing, the appellant must file and serve the appeal book and transcript. The appeal hearing will then take place, at which each party presents oral arguments to a single judge or Full Court judges.

7.12 Do any special enforcement regimes apply to specific types of works (eg, digital and online content) in your jurisdiction?

The Copyright Act does not include specific enforcement regimes based on digital or online content in Australia; however, there are specific provisions which deal with digital content. For example, Section 21 specifically states that converting a work or other subject matter to or from electronic format is a reproduction of the copyright.

7.13 What measures can copyright owners take to help prevent infringement of their rights in your jurisdiction?

There are strategies that copyright owners can take to prevent or mitigate the risk of infringement – for example:

• including a copyright notice on the work as a reminder that the work is subject to copyright, such as through the use of a copyright symbol;
• adding a watermark to identify the copyright owner of the work;
• uploading low-resolution versions of the work when featured online;
• including a statement specifying the reuse policy; and
• including contact information and terms and conditions for people seeking permission to use the copyright work.

8 Licensing

8.1 What types of copyright licences are available in your jurisdiction?

The following types of copyright licences are available in Australia:

• exclusive licences;
• non-exclusive licences;
• implied licences;
• inferred licences; and
• statutory licences (eg, educational licences as per Section 113P of the Copyright Act) (see question 8.4).

An exclusive licence is one which ownership in the copyright remains with the owner but the work can only be used by the stipulated licensee (and not the owner). An exclusive licence under the Copyright Act must be in writing and the terms will stipulate its parameters. A non-exclusive licence allows the copyright owner to continue licensing the same right to others. A non-exclusive licence need not be in writing to exist. An exclusive licensee can sue for infringement of its rights, whereas a non-exclusive licensee cannot sue for infringement.

An implied licence can arise at law in the absence of an express contract between the parties. The licensee obtains the right to use the copyrighted work, but its rights are limited. For example, where one party is commissioned to take photographs on behalf of another, this gives rise to an implied licence to use the photographs in a manner and for the purpose of commissioning the work. However, the photographer remains the owner of the copyright in the photograph.

A licence may also be inferred based on the objective intention of the parties at the time of entering into a verbal contract for services (Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39).

8.2 What terms do licences typically include (both express and/or implied licences)?

The common terms included in a licence relate to:

• permitted use (ie, the rights which are conferred on the licensee pursuant to the licence;
• duration;
• geography (ie, the country or territory to which the licence applies);
• jurisdiction (ie, the legal system under which disputes will be heard); and
• exclusivity (ie, whether the uses granted by the licence are permitted on an exclusive or non-exclusive basis).

8.3 Does your jurisdiction have collective management regimes for copyrights or other subject matter? If so, how does collective administration generally operate and who are the key players?

Australia does have collective management regimes. The following organisations implement these regimes by administering and licensing the rights on behalf of their member copyright owners:

• The Australian Performing Right Association (APRA) represents composers, songwriters and music publishers by licensing the public performance and communication rights in musical works.
• The Australasian Mechanical Copyright Owners Society (AMCOS) represents music publishers and administers the reproduction of rights in musical works.
• The Phonographic Performance Company of Australia (PPCA) represents record labels and recording artists by licensing the communication and public performance in sound recordings.
• The Copyright Agency represents authors, visual artists and journalists by licensing the communication and reproduction rights in literary, dramatic, artistic and journalistic works.

8.4 Are compulsory licences recognised in your jurisdiction, including with respect to digital/online intermediaries? If so, what types are available and what are their key features?

There are three statutory/compulsory licences in Australia:

• Statutory education licence: There are two licences in the Copyright Act that apply to educational institutions:
• • The first allows for the reproduction and communication of images and text for educational purposes (Section 113P(1) of the Copyright Act). The Copyright Agency has been appointed to manage this by distributing licence fees to creators.
  • The second allows for the reproduction and communication of television and radio broadcasts (Section 113P(2) of the Copyright Act). Screenrights has been appointed to manage this by distributing licence fees to creators.
• Government statutory licence: The Australian government may use copyright material for the services of the government without the permission of the copyright owner (Section 183 of the Copyright Act). Screenrights collects and distributes the royalties for government reproduction of material broadcast on television and radio, while the Copyright Agency collects and distributes royalties for the government's reproduction of images, print music and text.
• Retransmission statutory licence: The copyright in a work, sound recording or cinematograph film included in a free-to-air broadcast can be retransmitted by another service such as paid television, provided that remuneration notice is given to the relevant collecting society, which is Screensrights (Section 135ZZN of the Copyright Act).

8.5 Is there a formal system for establishing collective management tariffs? If so, please describe the framework for negotiating and establishing tariffs.

Part IVA, Division 5 of the Copyright Act outlines the framework in relation to collecting societies. As outlined in question 8.3, APRA, AMCOS, PPCA, Screenrights and the Copyright Agency are key players that collect royalties on behalf of copyright owners. The Copyright Tribunal may review the arrangement adopted by the society for the distribution of royalties (Section 113ZB of the Copyright Act).

8.6 Can or must copyright licences be officially recorded in your jurisdiction?

There is no official platform for recording copyright licences. However, collecting societies such as APRA AMCOS, PPCA, Screenrights and the Copyright Agency:

• manage licences on behalf of their registered members; and
• keep records of their licences.

8.7 Are there any specific requirements for the validity of a copyright licence in your jurisdiction? Are there any special provisions governing sub-licensing?

There are no particular requirements for copyright licences in Australia, although to be considered an exclusive licence under the Copyright Act, the licence must be in writing.

Where there is no agreement to license the copyright, a licence may be implied in order to give business efficacy to the relationship between the parties. Alternatively, a licence may be inferred based on the conduct of the parties (Realestate.com.au Pty Ltd v Hardingham 277 CLR 115 – see question 5.5).

A licence granted in respect of a copyright by the owner of the copyright binds every successor in title to the interest in the copyright of the grantor of the licence to the same extent as the licence was binding on the grantor.

9 Protection of foreign copyright

9.1 Are foreign copyrighted works protected in your jurisdiction? If so, how and under what conditions (eg, rule of the shorter term)?

Yes. Australia is a party to the Berne Convention. The signatories to this convention agreed to pass laws in their own countries that extend to nationals of other signatory countries. The provisions of the Copyright Act also extend to foreign copyright by virtue of the Copyright (International Protection) Regulations 1969 (Cth).

Given that there is no system of formal registration for copyright protection in Australia, foreign copyrighted works also receive automatic protection. Australia does not apply the rule of the shorter term.

9.2 What key concerns and considerations should be borne in mind by foreign copyright holders in seeking to protect their works in your jurisdiction?

There is no formal registration system for copyright protection. This increases the need for copyright holders to take proactive measures to prevent infringement of their rights in Australia (see examples set out in question 7.13).

The duration of copyright protection should be understood.

While also not required, maintaining a record of your work and any licences may assist in proving ownership.

10 Trends and predictions

10.1 How would you describe the current copyright landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The increased use of technology in Australian has had a significant impact on the consumption of copyright materials. The Attorney-General's Department commissioned a consumer survey in 2022 which demonstrated that:

• 70% of Australians consume copyright material online (eg, music, films or live sports); and
• 39% consume online content unlawfully.

Although Australia has implemented no significant legislative reforms which target the developing use of online copyright content, numerous review processes are underway to consider how best to approach this changing copyright landscape.

In December 2022, the government undertook a review of Australia's copyright enforcement regime which sought views on whether existing enforcement mechanisms could be supplemented or strengthened. Following the review, the government will prioritise developing reform options aimed at reducing barriers for Australians in enforcing their copyright rights. The focus will also include increasing public awareness and improving understanding of copyright issues to ensure easier access to the legal system for copyright enforcement.

Likewise, the Exposure Draft of the Copyright Amendment (Access Reform) Bill (Cth) has proposed an 'orphan works scheme' which addresses copyright materials where an owner cannot be found and which represent significant cultural value for users and Australian society. Although this is still under consultation – alongside other proposed reforms considering fair dealing, statutory licensing and exceptions for educational institutions, libraries and archives – the consultation demonstrates the key focus areas of the government in addressing copyright.

10.2 Have there been any recent legislative amendments or decisions involving copyright and generative AI, data or databases? If so, please summarise the current state of the law.

There have been no recent legislative amendments or lawsuits regarding copyright infringement and the use of AI.

The Copyright Act does not provide for a 'fair use' defence or exemptions regarding specific text and data mining, such as those which have been implemented by the United States and the United Kingdom respectively. Consequently, AI companies whose datasets are generated through the unauthorised reproduction of copyright content face significant challenges establishing that their acts fall within Australia's narrow statutory exceptions to copyright infringement. The only exemptions available under the Copyright Act for AI developers are:

• relatively limited fair dealing provisions regarding research and study; and
• temporary reproduction exceptions (Sections 43A and 43B of the Copyright Act).

These arguments have not been tested against AI systems in the Australian courts.

However, government initiatives have been established to address AI involvement in copyright infringement. On 5 December 2023, the attorney-general announced the establishment of a Copyright and Artificial Intelligence Reference Group (CAIRG) to better prepare for future copyright challenges emerging from AI. The CAIRG will not have decision-making authority or executive functions but will engage with stakeholders to focus on the use of copyright material as outputs and inputs for AI systems.

On 26 March 2024, the Select Committee on Adopting Artificial Intelligence was established to investigate the opportunities and impacts of AI in Australia. A report released on 25 November 2024 presented several recommendations to the Australian government, including urgently introducing a bill to amend the Copyright Act to clarify the application of copyright law to generative AI.

10.3 Have there been any recent developments involving intermediary safe harbour and liability in your jurisdiction?

The Copyright Amendment (Service Providers) Act (2018) Cth is the latest legislative development considering safe harbour provisions under the Copyright Act. The amendment broadened the scope of those protected by safe harbour laws by introducing a new definition of 'service provider' (Section 116ABA of the Copyright Act) to include:

• organisations assisting persons with a disability;
• bodies administering cultural and educational organisations;
• public libraries; and
• archives.

As a result, where organisations that are captured under this definition make their collections available to the public through online platforms, they will be protected from legal liability for authorising infringement of copyright by their users. To avail of the limitations on liability, it is a requirement that 'service providers' comply with the prescribed conditions outlined in Section 116AH of the Copyright Act, such as taking reasonable steps to deal with copyright infringement by users.

As demonstrated in Company International, Inc v Redbubble Ltd [2017] FCA 1541 and Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 355, the courts have increased the risk of authorisation liability for internet service providers, emphasising the important of being captured within the safe harbour provisions.

11 Tips and traps

11.1 What are your top tips for protecting copyrighted works in your jurisdiction and what potential sticking points would you highlight?

The absence of a copyright registration system can present challenges in establishing ownership without thorough documentation. To safeguard copyrighted works, it is recommended to establish clear evidence of ownership from the outset to demonstrate a chain of title from the original author. This can be achieved by preparing contracts that explicitly outline copyright ownership terms, particularly when dealing with contractors or employees.

Likewise, legal assignments of copyright must be in writing to comply with Section 196(3) of the Copyright Act. Securing written agreements for copyright assignments ensures validity and helps to avoid future disputes over ownership and rights.

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.