Innocent infringement of copyright

Under the Copyright Act 1968 (Cth) (Act), copyright infringement occurs regardless of whether it is intentional or not.  Artistic works are particularly susceptible to copyright infringement, because it is possible for two individuals to separately come up with the same idea, reproduce it in a material form, publish it and communicate it to the public.

The result is that an infringer may think they are absolutely entitled to exploit what they consider to be there IP, despite allegations to the contrary.  To deal with this situation, section 115(3) of the Act provides the special defence of “innocent infringement”. The section states:

“(3)  Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.”

Elements of the innocent infringement defence

Justices Lee, Von Doussa and Heerey held in Milwell Pty Ltd v Olympic Amusements Pty Ltd [1999] FCA 63 (Milwell) at [52] that to obtain the protection of section 115(3) the defendant must establish that at the time of the infringement:

  • they had an active subjective lack of awareness that the act constituting the infringement was an infringement of the copyright (Subjective Unawareness Element); and
  • they had objectively considered, they had no reasonable grounds for suspecting that the act constituted an infringement (Reasonable Suspicion Element).

Subjective Unawareness Element

In Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479 (Golden Editions) Burchett and Tamberlin JJ held at 480 that for this element to be satisfied the defendant must prove that they were in fact unaware of the infringement.  The question is not whether the defendant was unaware they were infringing the applicant’s copyright, rather that they were unaware that it was an infringement of copyright generally, whoever owns it.

Furthermore, it was held in Milwell that an incorrect belief that copyright could not subsist in a particular type of work is insufficient.  The defendant must present a positive case proving an ‘active, subjective lack of awareness’ that the act in question constituted infringement of copyright.

Reasonable Suspicion Element

A mistake of law is generally not sufficient to ground the special defence of innocent infringement, unless that mistake was made after reasonable enquiry and investigation.  It was further held in Golden Editions at 488 that a choice not to inquire may suggest a mind in which real suspicion resided.

In the 2009 decision of Vawdrey Australia Pty Ltd v Kruger Transport Equipment Pty Ltd [2009] FCAFC 156, the appellant (Vawdrey) denied receiving any oral or written communications from the owner of the copyrighted material (a sliding gate solution).  However, as questions had been raised as to the source of the design to be manufactured, Justices Moore and Bennett upheld the decision at first instance that the appellant had been put on notice.  Therefore, Vawdrey could not rely on the innocent infringement defence, as reasonable concern for inquiry was warranted.


The innocent infringement defence is not a catch all provision for copyright infringers to hide behind.  The case law provides clear limits that require both subjective and objective unawareness.  It is best to consult with a lawyer if you think that this special defence applies to your situation.

Links and further references

Related articles

Copyright Infringement Online – lessons for online traders

Copyright in artistic works


Copyright Act 1968 (Cth)


Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 379

Milwell Pty Ltd v Olympic Amusements Pty Ltd [1999] FCA 63

Tamawood Limited v Habirate Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3) [2015] FCAFC 65

The Dempsey Group Pty Ltd v Spotlight Pty Ltd (No 3) [2019] FCA 519

Vawdrey Australia Pty Ltd v Kruger Transport Equipment Pty Ltd [2009] FCAFC 156

Further information

If you need advice on copyright law contact us for a confidential and obligation free discussion:

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013
Mobile: 0419 726 535



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.

Dundas Lawyers
Street Address Suite 12, Level 9, 320 Adelaide Street Brisbane QLD 4001

Tel: 07 3221 0013

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