Is copyright infringement a criminal offence in Australia?

Many people think of the Internet as the Wild West, a lawless place where anything goes. Take what you want and do whatever you please with it. Well, this is not at all true. You need to respect copyright rules on the web. Sure, with just a few clicks you can copy someone’s work and pass it as your own. However, this represents a copyright infringement and can land you in a legal mess.

Here’s what you need to know about copyright infringement in Australia.


What is copyright?

Any creative work that comes straight from your head can be protected by copyright. This refers to written materials, graphic designs and drawings, but also to such things as templates that can be used by various businesses.

Obviously, you cannot copyright what falls under common knowledge, just as you cannot have copyright protection in Australia for names, short phrases, familiar symbols or the listen of ingredients for well-known recipes.

However, when you design a business logo for a company and it’s something original, copyright helps you protect your creation.

Whenever you publish original work on the Internet, you should include a copyright notice. The well-known copyright symbol ©, can be added to an image, for instance, to signify you’re the creator of that design and have copyright over it.

You don’t have to file for copyright protection for every little thing that you post online, that would be practically impossible. However, if it is your original work you can sue anyone that steals your work and uses it without permission.


How about copyright transfer?

When a business hires an independent contractor to create a new logo or develop their online presence in original ways, there’s the question of copyright ownership. Many business execs assume that by simply paying someone for a job means that they have copyright over the work. However, it is not an automatic process and the question of transferring copyright ownership should be discussed at the signing of the contract and put into writing.

If there is no such agreement in place, the contractor retains full copyright, and the business owner will have a licence to use that particular work. They won’t have the right to re-sell it to third parties.


Do background checks on independent contractors

Most companies understand the need to have a strong online presence in today’s world. As such, they need to hire graphic artists, web-based marketing experts or IT experts to develop their website. Most of the people in this domain work remotely, they can be in a different country for all you know. How can you be sure the web designer you just hired won’t try to sell you something he has stolen from the Internet? This could seriously damage the image of your company, even though no fault of your own.

To prevent being dragged in a copyright scandal, best ask for a Australian police check on independent (or in-house) artists and developers, to make sure they do not have previous copyright infringement offences on their criminal record.

Better safe than sorry!


Criminal offences involving copyright infringement

It is known that not all infringements of copyright are seen by the authorities as a criminal offence that will then show up in someone’s criminal record.

Usually, mere infringements of the copyright which then involve some sort of commercial dealings and are therefore on a commercial scale for the purpose of profit are a criminal activity. If convicted in a court of law, any of the below activities will end up as a criminal offence and will therefore also likely show up on an individual’s Australian police check certificate. Under the Copyright Act of Australia, it will likely be an offence to one of the following:

  • Be the cause of infringement within a scale that is commercial, even if the original infringer ends up making no actual financial gain or profit;
  • Create something like an “article” which then infringes the copyright for a sale item or hire item or to then get commercial advantages or profiteering. Also know that, to sell or work with such an article, sometimes with the pure intention of obtaining a financial or commercial advantage or even profit, within ways that are commercial;
  • Import the “article” in question which then infringes someone else’s copyright for the purpose of trade, or to then obtain a commercial/financial advantage and/or profit from the activity;
  • Carry out the distribution of the “article” which then infringes the copyright of someone else for the purposes of trade, or to even obtain any sort of a commercial advantage or a financial profit. It can also be for any other reason or purpose which prejudicially affects the owner of the property;


What Civil actions and or remedies can be taken in this instance?

If you believe that copyright may have been infringed, as copyright owner you will be entitled to carry out and commence various sorts of actions in courts of law in Australia and it should also be noted that various remedies may possibly be awarded within the court of law.

Court action should be commenced within six years time of the first date that the initial infringement actually took place.

Further to this, legal action may be taken within the Federal Court of Australia or the Federal Circuit Court of Australia.

Legal court action may also be taken in State and Territory Supreme court, depending on whether or not the party in question has the correct power to enable and grant the remedies which the original copyright owner seeks within the court of law for the purpose of seeking relief for copyright infringement.

Australian courts may also grant what is referred to as “interlocutory relief” and therefore final court orders.

It should be noted that court action for the purpose of copyright infringement should not ever be taken unless you have a solid case and have sought legal advice for the prospects of success. The court of laws in Australia will likely also give orders to a person who loses the case to pay another party’s court costs for initiating or defending the case. Court actions in Australia are very costly. The downside is that the award of costs granted by the court will not always cover the entire nominal amount for the person who successfully won the copyright case and therefore still has to pay legal counsel.




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