(a) Who is liable?
The following persons may be liable for copyright infringement:
- the person doing the actual copying or communication of the copyright work without the copyright owners' permission
- a person who authorises or sanctions the infringement. For example the University of New South Wales was found liable for authorising breach of copyright by providing photocopies in its libraries and failing to control or supervise what and how much was photocopied by students
See 4.7: Peer to Peer Networks
- the employers of a person who infringes copyright in the performance of their duties
(b) Civil Remedies
The remedies available to a copyright owner for copyright infringement include:
- damages (monetary compensation for loss)
- additional damages (where the infringement has been flagrant)
- an account of profits (compensation based on profit)
- an injunction (a court order which prevents the infringer from further infringing)
- delivery up (delivery up of any infringing articles or plates used to make the infringing articles)
(c) Criminal offences and penalties
Copyright infringements which involve commercial dealings may also be criminal offences. For example it is an offence to:
- make an infringing article for sale or hire or otherwise deal with an article
- distribute an infringing article for ' trade purposes' or for any other purpose that prejudicially affects the copyright owner
Persons found guilty of a criminal offence may be fined up to $93,500 and/or imprisonment for up to 5 years. Corporations may be fined up to five times the amount of maximum fines.
Criminal sanctions also apply in relation to copying which falls outside the library exceptions and compulsory licence schemes.
(d) Anti Circumvention Measures
From March 2001, the Copyright Act provides civil and criminal actions and remedies against:
- making, selling and the importation of devices that are used to circumvent technological protection measures used by copyright owners to protect and identify their material
- removal and alteration of Rights Management Information (RMI)
(i) TPM
(a) What are TPMs?
TPM is a technological protection measure placed on copyright material to prevent unauthorised copying. Examples include software locks or password protection measures.
(b) Civil action
The Copyright Act prohibits:
- the sale or importation of a circumvention device by a person,
- that person knows or ought to know that the device would be used to circumvent the TPMs,
- provided the material is protected by an effective TPM
(c) Non infringing acts
The actual use of a circumvention device is not an infringement. Further, the making, selling or importation of a circumvention device used for a permitted purpose is not an infringement.
(d) What is a permitted purpose?
The supply of a device for a permitted purpose is where the device will be used to exercise one of the acts of copyright and the doing of the act does not infringe the copyright as it is done for one or more of the following copyright exceptions, reproducing:
- a computer program to make an interoperable product
- a computer program to correct errors
- a computer program for security testing
- and communicating works by libraries and archives for users
- and communicating works by libraries or archives for other libraries and archives
- and communicating the work for preservation purposes
- and communicating under the Statutory Print Licence
(e) Fair dealing
A permitted purpose does not include acts of fair dealing.
(ii) RMI
(a) What is RMI?
RMI is information (or numbers or codes that represent information) attached to or embodied in copyright material, such as a digital watermark which:
- identifies the copyright work
- identifies the copyright owner
- contains any terms or conditions of use in respect of the copyright material
(b) Civil action
The Copyright Act prohibits:
- the unauthorised removal or alteration of the RMI
- importation, distribution or communication of material where the RMI has been tampered with
(iii) Liability
(a) Civil
Under the civil provisions, the onus is on the alleged infringer to show that they did not know or suspect that their actions infringed or were likely to infringe copyright in the above ways.
(b) Criminal sanctions
Under the criminal provisions, a person must:
- have knowledge
- be reckless in relation to the fact that the circumvention device would be used to infringe copyright in the material protected by the TPM
