Copyright Protection

Copyright protection is free and applies automatically in Australia. Although particular copyright material is automatically protected by law in Australia, you generally can't report a copyright infringement – there is no "copyright police". However, you can take legal action. It's different from a trade mark, which protects a brand name or logo, or patents that protect inventions and designs that cover a product’s overall visual appearance. Instead, copyright protects original works of authorship, which means they can't be repeated or imitated in whole or in part.

A cease and desist letter is sent by your copyright lawyer to the alleged copycat. It does the following:

• Demands that the infringer stops their unauthorised use of your copyright material.
• Specifies a date by which to do so.
• Warns them they risk extensive legal action.
• Outlines what action the copyright owner requires the infringer to take (e.g. stop selling, destroy all copies).

Want to contact the copycat? Better not. Sending a "letter of demand" without understanding your fundamental rights is a bad idea because it may give the copycat an excuse to ignore your legitimate claims.

 

In addition, there are legal ramifications in Australia if you send a letter that incorrectly accuses someone of copyright infringement. Also, if you send legal letters with inaccuracies, the copycat is unlikely to stop copying your work.

Copyright, unlike trade marks, provides international protection too. However, taking legal action overseas can be extremely costly and complex, making it impractical for most businesses. Level Up Legal can assist you in enforcing your Intellectual Property rights, even when the perpetrator is overseas, in several ways.

 

We can send the offender a cease and desist letter. If they ignore that, one of the most effective ways to deal with online infringement by an overseas party is to notify any relevant e-commerce website or social media platform that one of their members is infringing your copyright. Most online platforms have an intellectual property policy that allows them to take down content that is infringing a third party's rights.

 

The Copyright Act 1968 also allows an Australian party whose rights are being violated to apply to the Federal Court of Australia for an Order that a carriage service provider blocks access to a foreign website with the primary purpose or effect of infringing copyright. You can also contact the Australian Border Force and file a Notice of Objection with them. This gives them the right to seize goods coming into Australia that infringe on your copyright.

In Australia, copyright protection is automatic for your original works. You don’t need to pay anything or apply for registration to enforce your rights. Suppose someone uses your materials without your permission. In that case, you have the right to take legal action against them for orders that they stop using your materials and, in some cases, pay you damages or even pay you the profits they made from selling your copied works. It's also essential that you have clear and comprehensive contracts in place with people accessing your material, such as website Terms Of Use that say how your online material can or can’t be used.

If someone uses your work, for example, by selling copies of your artwork online, or uses a substantial part of your work without your permission, you have rights. You can take legal action against them to prevent further infringement and, in some cases, to obtain compensation.

 

Before you do so, you should take legal advice to be sure your copyright has been infringed. If so, the first step you should take is to have a lawyer send a cease and desist letter. Often a party that copies your work does not know that what they are doing is unlawful and will stop when they receive an adequately constructed legal letter that sets out your rights and the implications of their conduct. If not, you may decide that legal action is the next step.

There is a general misconception that anybody is free to use any work available to the public, for example, if it's online. This is not, in fact, the case. In general, you will need copyright permission from the artist or owner of an original work you find online before you use/adapt or use a substantial part of it. There are exceptions to this rule, for example, where a copyright owner expressly offers "free" licenses to use their material. Even then, it's important to read the Terms of Use carefully as there may be restrictions on how you can use the work.

If someone infringes your copyright, you have the right to commence legal action in court, and you may be entitled to several remedies. Firstly, the most critical order you will want to get is an injunction that stops the infringer from continuing to copy your work. You may also ask for an order that the infringer delivers to you any infringing copies that they still have in their possession.

 

If you have lost business or otherwise suffered financial harm, you can ask for damages from the infringer, often the amount you would have been able to charge for using your work, for example, through a licensing fee. If the infringement is particularly "flagrant", you can also ask for additional damages. As an alternative to damages, you can ask the court to order the infringer to pay you any profits they have made from using your work.

The short answer is no – copyright doesn’t protect ideas or information, but rather the expression of those ideas in material form. If you tell someone your great idea for a business, copyright won't prevent them from copying your idea and doing it themselves. If you are going to share any confidential ideas or information with someone, it's best to get them to sign a non-disclosure agreement.