What does it mean to infringe copyright?
Copyright is infringed if a person does any of the restricted acts in relation to someone else’s copyright material, without the copyright owner’s permission. Actions that are not restricted will not infringe the law. For example, exhibiting an artwork in a public art gallery is not an infringement of copyright, so permission is not required by the copyright owner. However, uploading the work onto a webpage (a communication to the public) without permission is usually an infringement.
Infringement by authorisation
A person may be liable for copyright infringement committed by others if they authorise an infringing act. For example, an employer may be liable for an employee’s infringement. To authorise means to “sanction, approve or countenance” the infringing conduct. In some cases, “turning a blind eye” may amount to authorisation. Care needs to be taken when tertiary education providers and their staff make available the means by which others might infringe copyright. It is important to take steps to actively discourage the use of computer systems and other equipment to infringe copyright works.
Infringement by copying
Copying is a restricted act in relation to all types of work and is arguably the most common compliance concern in the tertiary education space. Copying happens when resources are reproduced or recorded in some way, such as by hand, photocopying, scanning, downloading or uploading a work. Literary, dramatic, musical or artistic works are also copied when they are stored on a computer. In relation to artistic works, copying includes making a 3 –dimensional copy of a two-dimensional work and the making of a 2-dimensional work out of a three-dimensional work. It also includes making a photograph of any single image in a film or communication work. Format-shifting, such as converting material from MP3 files to a CD, is a form of copying, but is legal provided only one copy is made.
In most cases it is obvious if a whole work is copied. Copying also occurs when a “substantial part” of a work is copied and this is not always so obvious. There are no legal guidelines about the quantity of material or percentage of a work that makes up a substantial part ― it is a matter of fact and degree in each case. Often it is said that the quality of what is taken, rather than the quantity is what matters. A substantial part is essentially any important or distinctive part of the whole work and this may be a very small part of a work. Reproducing a few lines from a poem, an extract from a book or a paragraph from a journal article can be considered a substantial part of a work. Typically, educational use or research will call for an important or distinctive part of a work to be reproduced but this may not always be the case.
Illegal file sharing
Illegal file sharing has important implications for staff and students at tertiary education providers. There is a regime under the Copyright Act for bringing legal action against internet users who infringe copyright via a file sharing network. This regime was introduced via the Copyright (Infringing File Sharing) Amendment Act 2011.
What is file sharing?
File sharing is the downloading or uploading of material using peer-to-peer (P2P) networks or applications that allow material to be shared among multiple users. Examples of file sharing applications include Shareasa, BitTorrent, Ares, Kazaa, Limewire, BearShare and eMule. Not all file sharing is illegal – it is only when copyright material is infringed in the process.
Process for illegal file sharing claims
The copyright owner can forward allegations and evidence of illegal file sharing to internet service providers (ISPs), who are then required to send infringement notices to their customers informing them that they may have breached copyright via file sharing. The ISP may send up to three infringement notices and an account holder has the opportunity to challenge these notices. Account holders will be required to provide an explanation and may have their access to the network temporarily removed. If there has been no resolution following the three-notice process, then illegal file sharing claims may be referred to the Copyright Tribunal. The Tribunal may make awards of up to $15,000 based on damage sustained by the copyright owner.
Other types of infringement
In some situations, copyright owners can take action against people who alter digital copyright management information or who deal in devices intended to circumvent technological protection measures. Under the Copyright Act there are additional restrictions on importing infringing copies of copyright material, commercial dealing with infringing copies and providing assistance to others to infringe copyright.
Remedies for infringement
Copyright owners may enforce their copyright by bringing legal proceedings against those who infringe their copyright. Remedies for infringement include damages, account of profits and injunctions to prevent further infringement. Some types of deliberate copyright infringement may give rise to criminal liability. Students and teachers can be personally liable for their copyright infringement in an educational context and in some circumstances their tertiary education provider may also be liable.
Key to avoid infringing
Teachers and students in the tertiary education sector can avoid the risk of infringing copyright by understanding what content is protected and what the restrictions are on use. Where there is no existing permission or copyright exception, it will be necessary to get permission from copyright owners whenever copyright resources are copied or shared with others.