How do I protect against copyright infringement?
Copyright is a right that arises automatically. On a daily basis, businesses are creating works and documentation that are subject to copyright. This includes manuals, marketing materials, textbooks, internet and website content, architectural plans, artwork, logos, music, lyrics and software code. These works can represent considerable value that is unique to your business. Given the potential value of copyrighted material, it is important to protect your copyright from infringement through effective dispute resolution techniques or, if necessary, copyright litigation.
What are the different types of copyright infringement disputes?
A copyright infringement, breach or violation can arise in two ways:
- A person (or even an employee), without your authority, reproduces or takes a substantial portion of a work that is the subject of your copyright
- A copyright owner considers that you have reproduced or taken a substantial portion of their work.
What types of rights are covered by copyright?
While there are many rights that comprise the Copyright Act 1968, these are essentially divided into ‘economic rights’ and ‘moral rights’.
1. Economic Rights
Economic rights can be bought, sold and licensed by the original owners of the copyright. This means that, under the Copyright Act, copyright owners have the exclusive right to do, or authorise the reproduction, adaptation, translation, performance, broadcast, publication or public communicating, or importation of the protected work.
Most copyright infringements concern these economic rights. For example, copying a substantial part of the source or object code from one computer software program into another is a breach of the copyright owner’s exclusive right to sell and reproduce features of their computer program that derive from that code. An ex-employee reproducing and publishing a substantial part of their ex-employer’s training manual without permission is a breach of copyright on their literary work. An unrelated business using a photograph that you have taken or own the copyright in on their own website or marketing materials without your permission or authorisation.
2. Moral Rights
Authors and creators of copyright work also have moral rights; these belong to the original creator and cannot be transferred to others. Moral rights include the right to:
- attribution as the work’s author whenever the work is published or reproduced, preventing any other person from falsely claiming that they are the author of the copyright work; and
- preventing their work from being subjected to derogatory treatment.
These rights can be infringed where authorship is not recognised on a work or the work has been modified or displayed in such a way so as to be considered derogatory. Most moral rights last for the duration of the copyright, although the author’s right of integrity (i.e. the right to prevent derogatory treatment of a copyright work) lasts only for the author’s lifetime.
What options do I have to resolve a copyright infringement dispute?
There are two options for resolving an infringement of your copyright, or a claim of infringement against you by another party.
1. Copyright Dispute Resolution
While an aggressive copyright litigation strategy might be the best approach in certain circumstances, often the preferable commercial outcome (particularly when defending a copyright infringement claim) is to use alternative dispute resolution (ADR) methods such as negotiation or mediation to facilitate communication between the parties to reach a settlement to the dispute. If you are the copyright rights holder, we will prepare an appropriately worded warning notice or letter of demand to be sent on your behalf. If you have on the other hand received a letter of demand, we provide you with clear advice on where you stand and develop an appropriate response to be sent on your behalf. In both instances these initial correspondences will then open the lines of communications between the parties (or their lawyers) which creates an opportunity to explore whether a settlement commercially favourable to you can be achieved in the early stages of the dispute. In the majority of cases, copyright infringement disputes will settle without the need for legal proceedings being commenced. Our intellectual property and copyright lawyers have a strong track record of achieving commercially relevant and favourable results for our clients.
2. Copyright Litigation
While we always put in place strategies to explore settlement opportunities, sometimes the adoption of an aggressive copyright litigation strategy is unavoidable and/or a necessary commercial strategy. At the start of any litigation we provide you with a clear roadmap showing you how a matter might unfold, with the timeframes and costs associated with each of those stages. We keep you informed of progress and fixed fees for every stage of the litigation process with what we call a Fixed Fee Litigation Structure. Also with our fixed fee project based approach it means you can take the matter in stages and retain certainty, control and transparency on your legal spend.
Our intellectual property and copyright lawyers have litigated in various jurisdictions including the Federal Court of Australia and Federal Circuit Court of Australia and bring a wealth of intellectual property experience to devise the strategy best tailored to your needs and those of your business. We also work with a close network of overseas copyright lawyers in all key jurisdictions meaning we can assist you with any international copyright dispute issues in an efficient way with clear focus on achieving the right outcome.
HOW CAN ACTUATE IP ASSIST?
It is vital that you obtain accurate, specialist advice on how best to deal with copyright disputes and copyright infringement claims for your particular circumstances. Actuate IP will work with you to manage the copyright dispute resolution process and if necessary the litigation process. As a starting point we will invest time at the outset to understand the nature of your dispute and how it relates to your business and what your business wants to achieve from the dispute – whether you are enforcing your rights or defending claims of infringement made by another business against you. With this understanding we will provide you with a detailed and considered Fixed Fee Proposal that provides you with initial recommendations and fixed fee options on how to approach the dispute in a way that will achieve the right outcome for you. You can then decide whether our firm will be the right fit for your business.