When we were young, we all heard the saying “sharing is caring.”
As we get older, we begin to realise that sharing is caring… but not when it comes to business.
When starting a business, people often neglect to consider intellectual property issues. This can pose a substantial risk to all the hard work and dedication you’ve put into building and growing your business. So, when you’re starting out, it’s really important to make sure that the key elements of your business (like your logo or designs) aren’t infringing on someone else’s copyright.
The concept of copyright infringement can be particularly tricky to navigate, and it isn’t always a black and white issue.
In many cases, you might not have even intended to infringe upon someone else’s copyrighted work. For example, you could have thought that a design was your ‘own’ work until, one day, you spotted an identical design in a magazine.
So, before you panic, here are some key points to help you identify whether or not your work is infringing copyright.
What Is Copyright?
Before we dive into copyright infringement, it is important to understand the legal definition of copyright. Copyright is a legal right that allows a creator or owner to protect the expression of their ideas, rather than the ideas themselves.
Since there is no registration system for copyright in Australia, copyright protection is acquired automatically. In other words, the creator does not have to register or pay for their work to be protected.
When Does Copyright Protection Arise?
Copyright protection automatically arises the moment the creator puts the original work in a fixed or tangible form of expression. This includes writing articles or guidelines on a website, creating your own mobile app, creating a website, taking a photo, and so on.
The purpose of copyright is to give creators recognition for their innovation, and to ensure they’re paid for their original work, regardless of whether or not the work was published.
To find out more about how to copyright something, check out this article.
What Is Copyright Infringement?
Since copyright owners have exclusive rights to their own work, if a person or a company copies, shares, changes, or derives from the owner’s work without the permission of the copyright owner, they are infringing copyright. In other words, it is piracy or theft of someone’s original creation.
But, let’s say that you didn’t intentionally copy the copyright owner’s work, and the similarities were either accidental or were made subconsciously. What happens? Are you really liable for copyright infringement?
Unfortunately, yes. Regardless if it is unintentional or not, the copyright owner can still make a claim of copyright infringement against your work.
According to the Copyright Act 1968, the court will determine that a copyright infringement has occurred if there is a substantial part of the copyrighted work in alleged infringer’s work.
What Does It Mean To Copy A ‘Substantial Part’ Of Someone Else’s Work?
Generally, if a work contains an important, distinctive or essential part of the original material, then it will be considered as a ‘substantial part’ of the original design. This applies regardless of whether this ‘part’ makes up a small or large component of the infringing work.
It is important to note that the ‘substantial part’ must be qualitative rather than quantitative.
A classic example of this can be found in a court case from 2010, where it was alleged that Australian rock band Men at Work’s 1981 hit song, ‘Down Under’, copied the first two bars of the nursery rhyme, ‘Kookaburra Sits in the Old Gumtree.’ The court found that those two bars were a substantial part of the original work because it formed the melody of Kookaburra.
The copyright owner of the Kookaburra song, Larrikin Music Publishing, was able to claim 5% of the royalties from ‘Down Under’.
This case shows that even if you’ve copied only a small percentage of someone’s work, you still might have infringed copyright. This is because copyright infringement is judged on the quality of what is being copied.
If the work is too small or unoriginal to be protected by copyright – such as single words, titles or slogans – your use of this work may not be enough to constitute copyright infringement. Having said that, though, you may get into trouble in other areas of law, such as trade mark opposition.
Are There Exceptions To Copyright Infringement?
There is an exception to copyright infringement called fair dealing where you don’t need permission to copy someone else’s work. This applies for things like:
- Reporting the news
- Research or study
- Parody or satire
- Criticism and review
Copyright protected materials are often some of the most valuable assets of a business, so it’s really important to make sure that you’re not infringing on anyone else’s work.
If you’re not sure whether you own the copyright of the intellectual property used in your business, it’s a good idea to speak to a lawyer. They can help you figure out whether the intellectual property is eligible for copyright protection and, if so, who owns it.
Our friendly team of lawyers can walk you through your rights and obligations under Australian law, and explain what you can do from there.
You can reach us for a free, no obligations chat on 1800 730 617 or drop a line at firstname.lastname@example.org.
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