How much copying results in copyright infringement?

Copyright can subsist in many types of works.[1]  Often, the written word will give rise to copyright.  This is known as Literary Works.[2]  However, this also means that infringement of Literary Works is quite common.  This article outlines what may constitute Literary Work and how the Court will assess an alleged infringement.

What are Literary Works?

Literary Works include tables or compilations, expressed in words, figures or symbols, and a computer program or a compilation of computer programs, as the Act defines it in section 10.  The High Court has held in Computer Edge Pty Ltd  v Apple Computer Inc (1986) 161 CLR 171 that the adjective ‘literary’ does not impose upon the works some requirement that it is of a particular standard or expressed in ordinary language. It will be sufficient that the work conveys information, instruction or literary enjoyment.[3]  As such, a variety of written works have constituted Literary Works, including:

  • letters;
  • Power point presentations;
  • government reports; and
  • a company prospectus.

Subsistence of copyright

Subsistence in the context of Literary Works describes a state of intellectual property rights existing within certain works.  That is to say, when copyright subsists in Literary Works, it is protected.  The Copyright Act 1968 (Cth) (Act) governs whether copyright subsists in Literary Works, as well as other original works, or not.

Section 32 of the Act provides that:

“…(1)  Copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:

(a)  was a qualified person at the time when the work was made; or

(b)  if the making of the work extended over a period—was a qualified person for a substantial part of that period.

    (2)  Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:

(a)  copyright subsists in the work; or

(b)  if copyright in the work subsisted immediately before its first publication—copyright continues to subsist in the work; if, but only if:

(c)  the first publication of the work took place in Australia;

(d)  the author of the work was a qualified person at the time when the work was first published; or

(e)  the author died before that time but was a qualified person immediately before his or her death…”

Section 32(4) provides that a person is a ‘qualified person’ if they are an Australian citizen resident.  There is no prerequisite that they maintain some skill or otherwise to be qualified.  It can be seen then, that Australian citizens and residents enjoy copyright protection over all Literary Works they publish within Australia.

The effect of copyright subsisting in Literary Works is described in section 31 of the Act, which provides:

“(1)  For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a)  In the case of a literary, dramatic or musical work, to do all or any of the following acts:

(i)  To reproduce the work in a material form;

(ii)  To publish the work;

(iii)  To perform the work in public;

(iv)  To communicate the work to the public;

(v)  To make an adaptation of the work;

(vi)  To do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv) inclusive; and

(b)  In the case of a literary work (other than a computer program) or a musical or dramatic work, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and

(c)  In the case of a computer program, to enter into a commercial rental arrangement in respect of the program.”

What amounts to copyright infringement?

Per section 14 of the Act:

“…Acts done in relation to substantial part of work or other subjectmatter deemed to be done in relation to the whole

 (1)  In this Act, unless the contrary intention appears:

 (a)  a reference to the doing of an act in relation to a work or other subjectmatter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subjectmatter; and

 (b)  a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.”

Furthermore, pursuant to subsection 36(1) of the Act:

“…the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.”

What is the test for infringement?

In determining what amounts to ‘substantial part’, no precise percentage or quantitative test exists.  The ‘substantial part’ test is ‘qualitative’ rather than quantitative, reproduction of a small portion of the work may be deemed to be substantial, if the portion in question was critically important.  A substantial part may be an underlying component or ‘sinews; of a work, not only a particular section or block of it. In Milpurrurru v Indofurn Pty Ltd [1994] FCA 1544 209; von Doussa J held, that four (4) major characteristics were to consider in determining whether copying is substantial:

“[f]irst, the volume of the material taken, bearing in mind that quality is more important than quantity; second, how much of such material is the subject-matter of copyright and how much is not; third, whether there has been an animus furandi [intention to steal] on the part of the defendant; this was treated … as equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour; fourth, the extent to which the plaintiff’s and the defendant’s (works) are competing works.”

Takeaways

Australian intellectual property law affords an instant protection in all Literary Works published by its citizens and residents.  The effect of such protection is that the publisher enjoys exclusive rights in the Literary Work which cannot be lawfully replicated, if such replication is substantially similar to the original works, without the express permission of the copyright holder.

Links and further references

Related articles

Innocent infringement of copyright

Copyright infringement online

Legislation

Copyright Act 1968 (Cth)

Cases

Compare Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd [1990] 1 Qd R 231.

Computer Edge Pty Ltd  v Apple Computer Inc (1986) 161 CLR 171.

EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444

Milpurrurru v Indofurn Pty Ltd [1994] FCA 1544

Further information

If you need advice on infringement of copyright in Literary Works, contact us for a confidential and obligation free and discussion:

Malcolm BurrowsMalcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 (preferred)
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

 

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Copyright Act 1968 (Cth) s 10.

[2] Copyright Act 1968 (Cth) s 10.

[3] Compare Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd [1990] 1 Qd R 231.

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