When is copyright infringed?

Copyright is infringed when a person uses one or more of the copyright owner’s exclusive bundle of rights in relation to a “substantial” part of the copyrighted material, without the copyright owner’s authorisation or licence. The term “licence” refers to the permission or consent of the copyright owner. This unauthorised use is illegal unless one of the defences under the Copyright Act, such as fair dealing applies, or if the copying is permitted under a statutory licence.

This does not mean that a person has to use all of a work for an infringement to occur. Unauthorised use of a “substantial part” is the legal benchmark. The critical factor in this context is determining “substantiality”. This is achieved by considering the quality and creative significance of the part used in relation to the whole work. Using this benchmark in some instances even a relatively small part of a work may be considered a substantial part. For example, an essential string of computer code, or the key melody bar of a musical score, if copied without permission can infringe copyright.

Liability for copyright infringement

Liability for copyright infringement spans a number of dimensions including personal, workplace and authorisation responsibilities. In an educational setting school staff and leadership need to be aware of the following:

• A person is liable for copyright infringement when they perform any acts which amount to copyright infringement.
• An employer may be liable for copyright infringement if their employees infringe copyright in the course of their employment.
• Authorisation of another person’s infringing use of a work, without the copyright owner’s permission, can also be an infringement.

Anyone who “sanctions, approves or countenances” an infringement will be considered to have “authorised” that infringement. In determining liability for authorisation infringement under the Copyright Act the following factors are considered:

• the extent (if any) of the person’s power to prevent the act occurring;
• the nature of any relationship between the person and the person who did the act;
• whether the person took any reasonable steps to prevent or avoid the doing of the act are relevant to whether a person has authorised a copyright infringement.

Under the Digital Agenda amendments to the Copyright Act a person who merely provides facilities for making a communication, which includes telecommunication carriers and Internet service providers, will not be taken to authorise copyright infringement merely because another person uses the facility to breach copyright.