Navigate / Create

Helping bloggers navigate the law

What is copyright infringement?

stop sign grunge

The general rule for copyright infringement is:

Infringement = exercising one of the copyright owner’s exclusive rights without the copyright owner’s permission or without a legal exception

The most common form of infringement is copying (reproducing) a copyright work or other subject matter. There are some important things to know in relation to infringement by copying:

(1) To infringe a literary, musical, artistic or dramatic work, the copy does not have to be exact. It just has to be substantially similar. For example, let’s pretend that the Mona Lisa is still protected by copyright and is not in the public domain. I could infringe copyright by making an exact copy – e.g. by colour photocopying the painting. But I could also infringe copyright by sitting down in front of the Mona Lisa and trying to recreate it by painting by own version. I won’t be able to make my painting look exactly the same as the Mona Lisa (it would look a lot worse), but I will still be making a substantially similar copy.

(2) Conversely, to infringe a sound recording, cinematograph film or a published edition, the copy does have to be exact. In other words, I can infringe a sound recording by burning a CD or copying an mp3 file. But if I were to sit down and record myself playing the same music from a sound recording on my guitar, that would not be an infringing copy of the sound recording (though it may be an infringing copy of the underlying musical work).

(3) You do not have to copy the entire work to produce an infringing copy. The law says that you have to copy a “substantial part”. This is a little misleading, because it makes it sound like you need to copy a lot to infringe copyright. You don’t. What the law means here is that the part you copy should be more than trivial. Even copying a small part of something can be infringing so long as it is not trivial. What the court looks at is the quality of what is copied rather than the quantity. So, for example, copying the chorus from a song is likely to be substantial because the chorus is usually central to the song and memorable, even if the chorus is not substantial (in terms of quantity) when compared to the length of the verses.

What can happen to you if you infringe copyright?

If you get sued for copyright infringement, there are two main remedies that a court may order against you.

(1) An injunction – this is basically a legal order that you must stop using the copyright work.

(2) Damages – the legal term for money ($). You might be required to pay the copyright owner a certain amount to compensate them for using their work without permission.

Where to from here?

You will be happy to know that this marks the last of the heavily legal posts. Now that we have a foundation in place for a basic working knowledge of copyright law, I’ll be able to get to the posts that are more directly relevant to your interactions online. Coming up soon:

  • Where to find content that is free to use on your blog (such as photographs)
  • How to ask for permission to use a copyrighted work
  • When you don’t need permission (legal exceptions to infringement)

Plus, very soon I’m going to dive into the legalities around collaborations – how to decide who owns what, and things to talk about before you collaborate.  So there are lots of exciting posts on the horizon. Catch you next week!

Image credit: Stop Sign Grunge by Nicolas Raymond, licensed under Creative Commons BY 2.0

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What rights do copyright owners have?

So far, we’ve learnt that copyright protection will attach to your original expression automatically. But what does it mean to have copyright protection? 

Copyright law grants to a copyright owner certain exclusive rights in their work.

Exclusive

“Exclusive rights” in the context of copyright means that only the copyright owner or someone with the copyright owner’s permission can exercise those rights (unless the person acting is protected by a legal defence or exception – more on these soon).

The rights are:

For artistic works –

  • the right to reproduce (i.e. copy) the work
  • the right to publish the work
  • the right to make the work available online (e.g. to post to a blog)

For literary, dramatic and musical works –

  • the right to reproduce (i.e. copy) the work
  • the right to publish the work
  • the right to make the work available online (e.g. to post to a blog)
  • the right to perform the work in public
  • the right to adapt the work (e.g. to produce a screenplay for a film from a book, or to remix a song)

For sound recordings and cinematograph films –

  • the right to make a copy of the sound recording or film
  • the right to cause the sound recording or film to be heard or seen in public
  • the right to make the recording or film available online

For published editions –

  • the right is to make an exact copy of the published edition

An understanding of the exclusive rights of copyright owners goes hand-in-hand with an understanding of what it means to infringe those rights. For this reason, this week I am bringing you two posts rather than the usual one. Tomorrow I will publish a post on: ‘What is copyright infringement?’ Stay tuned!

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© Basics: Duration

Sometimes people ask me how long copyright protection lasts. The answer is a very long time. Some say too long.

In Australia, copyright lasts for the life of the creator plus 70 years for literary, dramatic, musical and artistic works. If a work is anonymous (i.e. we don’t know who the creator is) then copyright protection lasts for 70 years after the work is first made available to the public.

For sound recordings and cinematograph films, copyright protection lasts for 70 years after the recording or film is first made available to the public. For published editions, copyright lasts for 25 years after the edition is first published.

I told you it was a long time! (In fact, did you know that your copyright interest is something that you can pass down to your children or other beneficiaries in your will?)

Photo by James Kendall, licensed under Creative Commons BY-ND 2.0

Photo by James Kendall, licensed under Creative Commons BY-ND 2.0

That’s why copyright notices like “© Kylie Pappalardo 2014” can be helpful. Once you know who created the work and when it was made, you can figure out when the copyright term will end.

So what happens when the copyright term does end? The work falls into what we call “the public domain“, which means that anyone can use the work however they like for free.

Now most public domain works are old, of course, but that doesn’t mean they’re not fun or useful. For example, the original illustrations in Lewis Carroll’s Alice in Wonderland are in the public domain (the illustrator, John Tenniel, died in 1914). There are many examples of people using these images in party themes, invitations and decorations (and selling their products on Etsy). Another interesting example is Project Gutenberg, which provides free e-book downloads of public domain books.

 

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