We are the Australian copyright lawyers businesses trust
Copyright infringement and breach of copyright needs to be taken seriously. The faster you put a copyright infringer on notice of your rights the easier it is to stop them infringing your rights. You need to move quickly so that the person does not start to feel he/she has a right to use your works.
Putting an infringer on notice of your rights in copyright works also puts you in a better position to claim additional damages for infringement. Additional damages are discretionary but awarded with the infringer has flagrantly and willfully infringed your rights. If you put a person on notice of your rights (through a rights notification letter) and the person does not stop infringing your copyright rights, then you can use that notification as evidence of their willful behaviour.
You should take care when putting other traders on notice of your copyright rights as the Copyright Act contains provisions against making groundless or unjustified threats. If you send unjustified threats, then you might find yourself having to defend yourself in Court. Always obtain the opinion of a qualified copyright lawyer before sending any threats.
Copyright registration is not possible in Australia, but in some other countries you are required copyright registration before taking action to enforce your copyright rights.
Clients come to us because of our experience, they stay because of their experience
EAGLEGATE’s founding Partner, Nicole Murdoch, is an Engineer, has formal training as a Patent Attorney and has over 10 years industry experience in the IT industry. She is a Doyle’s Guide recommended IP lawyer and holds a Masters in the subject matter. She has practiced IP law for the last 10 years and understands the practical implications of court cases on clients and their businesses. She aims to settle cases on commercially sensible and economic terms without having to proceed to court.
Australia does not have a general use exceptions to infringement of copyright. We do have express defences which can be relied upon only in some circumstances. We also have an innocent infringement defence, which is not simple to reply upon. There may be other defences that apply to your situation. If you need advice on a claim, call EAGLEGATE now.
What is Copyright?
Copyright rights protect Works such as literary, dramatic, musical or artistic works. Computer programs are considered a literary work under the Copyright Act. Depending on the Work, copyright rights can be infringed by reproduction, publishing the works, offering infringing goods for sale, making an adaptation and communicating the Work to the public. There are many exceptions which apply to copyright rights infringement, including independent creation.
What does Copyright protect?
Copyright protects the expression of an idea, not the idea itself. Thus, it will not protect a copyright owner against independent creation.
Is there a Copyright register in Australia?
Within Australia there is no mechanism of registration of copyright rights and the rights are created automatically with the creation of the work. That is not the case in other countries and you should take qualified advice from suitably qualified copyright lawyers in each jurisdiction before taking action.
What does infringement of copyright look like?
In our experience the types of copyright rights infringements we see include software programs (both source code and object code), business development agreements, marketing material (particularly from competitors websites), images and photographs and educational material. The usual scenarios we encounter are employees taking material as they leave employment, employees accessing and copying material whilst still employed and competitors taking material from the internet.
Infringers do not always use copyrighted material for economic gain.
What relief will a Court give me if someone infringes my copyright?
The usual remedies available to a rights holder includes (at their election) damages or an account of profits, injunctions and appropriate delivery up orders. If you elect to be compensated by way of damages, it may also be possible to obtain additional damages but you cannot claim both account of profits and additional damages.
If you believe someone has taken your works, call EAGLEGATE for a free confidential discussion.
COPYRIGHT RIGHTS FAQs
- I can’t find the owner of a work, can I still use it?
A work where the author cannot be found is known as an orphaned work. Use of an orphaned work may constitute infringement if an exception to infringement cannot be found.
- How long do copyright rights last?
The answer depends on the type of work, when it was created, whether it was published and whether the author of the work is still alive (and if not when they passed away).
- If I just take 10% of a work can I still infringe copyright rights in the work?
The answer depends on the use of the work, but that exception to infringement only applies to one type of use. Copyright is infringed when a person, without authorisation, does an act comprised in copyright rights (such as reproduction) and no defences or exceptions apply. The test is whether a substantial part of the work has been taken and it is based on quality not quantity of what is taken. Therefore a person can take only 2% of a work and still be found to infringe that work.