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“What can I do if my original work is copied by someone else?” How do I protect my copyright in Australia?

Research and content sharing have become ever so convenient with the advancement of technology. With everything readily accessible on the internet, your original work can be copied with just a few clicks of a button. Today we will briefly discuss how to determine whether your work is protected under the relevant legislation, and what conducts constitute a copyright infringement?

The fundamental elements

Generally speaking, as long as a work satisfies the following four elements, the work will be protected under the Copyright Act 1968 (Cth) without the need to submit any formal applications.

Firstly, the work needs to be reduced to writing or to some other material form. That is, the author must record, written, or present the idea in some physical shape or form. Copyright does not protect ideas, concepts unless they are expressed or presented in a material form such as writing or artistic work.

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Secondly, the work needs to be original as copyright only subsists in original works. As emphasised above, the originality requirement only relates to the expression of thought (i.e. the way you present your idea), it does not require the work to be an expression of original or inventive ideas. As long as the ideas are presented in a different way and the author has exercised his or her independent judgment, effort, skill, and intellectual effort in the particular production of the work. For example, a song that has been rearranged or remixed will be protected under the Act.

Please note that although the rearranged or remixed songs are original works which copyright subsists, if the consent was not obtained from the original author of the song, it may constitute a copyright infringement.

Thirdly, copyright only subsists in protected subject matters under the Act. The subject matter can be classified into two categories, works and subject matter other than works, which covers a wide range of different types of works, including but not limited to published or unpublished literary, dramatic, music work, building, and artistic work attached to a building, audio, video, and film, etc.

Lastly, the subject matter must also have a connection with Australia, generally, to satisfy this element, the work must be created or published in Australia.

What conducts constitutes copyright infringement?

Substantial similarity

Generally speaking, it is an infringement to reproduce a substantial part of the work. Direct copying and pasting are easily identifiable. However, if the person did not just copy and paste the work but makes many modifications to the content, it will be difficult to define whether the two works are substantially similar.

If a copyright infringement dispute in taken to Court, the Court will objectively determine the similarity between the two works, and what constitutes a substantial similarity. This may be determined according to the circumstances and the subject matter. For example,the kookaburra song case has demonstrated similarity in musical works are considered aurally rather than on a note-to-note basis.

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Causal connection

Secondly, the plaintiff also needs to prove that the defendant has accessed or possession of the plaintiff’s work, especially if the work has not been published or made public. However, if a work is published on the internet or has been made public, such as WeChat articles, the Court will usually determine that there is a connection between the infringing work and the published work.

Remedies

If someone used your work without your permission, you could contact the relevant social media platform and ask them to remove or delete the infringing content. However, if the infringing party refuses to cooperate and the infringement has caused losses and damages, you may commence legal proceedings to:

Seek an injunction and prohibit the infringing party from continuing to use the work;
Mandate the infringing party to issue relevant statements; and
Seek compensations for the losses suffered or claim for an account of profit.

Conclusion

The popularity of the internet has brought us convenience, but the risks should not be ignored. How to protect your copyright and avoid infringing the copyright of others has gradually become an inevitable topic. Fumens Lawyers is a multicultural legal team. If you are facing similar problems, please contact us, and our professional lawyer team will try our best to solve your problems.

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