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Acts falling outside the scope of copyright infringement

At the time of authoring this article, Joel Barrett was a legal volunteer at Arts Law.

Under the Copyright Act 1968 (Cth) (Copyright Act), the most common way to infringe copyright is to exercise without permission one of the copyright owner's exclusive rights in relation to the copyrighted material. For example, you can't photocopy the pages of a novel because the owner of the copyright in the book (usually the author or the publisher) is the only person who is allowed to reproduce that literary work. Photocopying a page from a book would also infringement the copyright in the 'published edition' because copyright protects the typographical arrangement of a work.

The Copyright Act provides a list of exclusive rights for each type of work. If the way in which you want to use someone else's work falls within one of the exclusive rights then you can only use that material if:

  • the copyright protection for the work has expired – look up the Copyright Council's information sheet 'Duration of Copyright' or call the Arts Law Centre of Australia; or
  • you have a licence to use the copyright material; or
  • you can rely upon an exception to copyright infringement – such as the satire and parody exception; or
  • you are not reproducing a substantial part – but be careful! 'Substantial' doesn't mean 'large' – what is considered is the quality not the quantity of what you have used. If you have used an important or distinctive part of the copyright material it can be a substantial part; reproduction of quite small amounts of material has been found to infringe copyright.

The list of exclusive rights granted to the copyright owner cover many ways of using copyrighted material but they don't cover every situation. If the way that you want to use the work is not an exclusive right of the copyright owner then you are free to use that work. In this article, wediscuss three examples of artistic practices that fall outside of the scope of copyright infringement.

Artistic works

Under the Copyright Act, copyright in an artistic work will only be infringed if someone:

  • reproduces the work in a material form;
  • publishes the work; or
  • communicates the work to the public.

The words 'publish' and 'communicate' in this context can be deceptive because the Copyright Act defines them narrowly. Publication of an artistic work is limited to supplying reproductions of the work to the public (by sale or otherwise), while communication only occurs when material is electronically transmitted or made available online. By contrast, a work can be reproduced' in a wide variety of methods, for example by photographing, filming, drawing, sketching and many other techniques, even if the reproduction is not an identical one.

Generally, using already printed material to create a new artwork won't amount to copyright infringement. For example, collage, décollage and découpageall involve cutting or tearing images or patterns from magazines, newspapers, postcards, wrapping paper or other sources. Creating these artworks doesn't involve doing any of the exclusive acts reserved for the copyright owner so you will not being infringing the copyright in the source materials when you create the work or when you hang it in a gallery. Of course unless you have a licence or can rely upon a statutory defence, you would be liable for infringing the copyright in the source material if you then reproduce your artwork, for example by creating prints or uploading a copy of the work to the internet. Taking a digital photograph of your collage and uploading it to the internet would involve reproducing, publishing and communicating the source material and the right to do any of these acts is the exclusive right of the owner of the copyright in the source material.

Although collage, décollage and découpagegenerally don't involve copyright infringement, it is still important to keep in mind that such work may attract other forms of liability – they could all potentially involve infringement of the moral rights of an artist whose image you have used. You may be infringing the artist's moral right of integrity if you have cut up or otherwise altered the source material in such a way that it is prejudicial to the artist's honouror reputation, perhaps by exhibiting it in a derogatory context. Similarly, displaying the copyrighted work without expressly including the name of the artist will infringe the moral right of attribution unless it was reasonable in the circumstances not to attribute the source material or the artist consents to the infringement of his or her moral rights. Arts Law and the Copyright Council both have information sheets about moral rights.

Literary, musical and dramatic works

The acts reserved exclusively for the copyright owner in relation to literary, musical and dramatic works are the same as those for artistic works (the right to reproduce, publish and communicate) but also extend to:

  • performing the work in public; and
  • making an adaptation of the work.

This means that it is perfectly fine for someone to sell a novel that he or she owns in a public market place as long as that person has not reproduced the copy, for example by printing its pages from the internet. The same reasoning applies to selling a play script or sheet music in a public place. These examples highlight the conceptual divide between property and intellectual property: you will have property in (or 'title to') any object you buy, which allows you to sell that object without restriction, but you will not own the intellectual property in that object (unless you created it yourself or had the intellectual property assigned to you in writing) and therefore you cannot exercise any of the exclusive rights of the copyright owner.

Playing the music, acting out parts of the play or even reading lines from a novel aloud will fall within the definition of 'performing the work in public'. The courts have interpreted this exclusive right broadly, as is evident in APRA v Tolbush[1] where the court held that a shop selling car radios 'performed' musical works whenever they turned the radios on for customer demonstrations.

Subject matter other than works: films, sound recordings and broadcasts

A common question among Arts Law subscribers is whether taking a still image from a film and showing it in public can amount to copyright infringement. The acts reserved exclusively for the copyright owner in relation to a cinematograph film are:

  • making a copy of the film;
  • causing the film to be seen or heard in public;
  • transmitting the film and sound recording to the public; and
  • rebroadcasting a television or sound broadcast.

Under the Copyright Act, a film is defined as an 'aggregate of visual images'. It's therefore unsurprising that making a copy of the film or causing it to be seen or heard in public must involve the use of more than one image and is an exclusive right of the copyright owner. However, whether reproducing a still image from a movie or television program and showing it in public constitutes infringement is debatable. The Copyright Council suggests that a still image from a film could be considered a 'photograph' and therefore an artistic work, and that a famous or recognisable still may be a "substantial part" of the film. In such a case, it would be necessary to obtain a licence from the copyright owner permitting the reproduction of the still. The same applies for taking a single piece of celluloid and projecting it in public.

Summary

This article demonstrates that copyrighted material is not untouchable and there will be occasions in which you can use other people's copyrighted material in your own work. In most cases, whether you have infringed copyright depends on whether you have exercised the rights that are only available to the copyright owner, and this has nothing to do with whether you are dealing with the material in private or public. Some acts in private will constitute copyright infringement (such as scanning or hand copying a recently written poem), while some perfectly blatant acts in open public will attract no trouble whatsoever.

Footnotes

[1] Australasian Performing Right Association v Tolbush (1985) 62 ALR 521.
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