Copy That, Part 8 – Infringement and Enforcement: What Happens When It Goes Wrong

Copyright gives creators powerful rights. But those rights only matter if you can enforce them when someone crosses the line.

What counts as infringement?

Infringement happens when someone does any act reserved for the copyright owner—copying, distributing, adapting, performing—without permission or a valid exception.

Importantly, it doesn’t have to be deliberate. Even unintentional or “I didn’t know” copying can still be infringement.

The test isn’t whether the whole work was copied. Reproducing a “substantial part”—which can mean the heart or essence of the work—is enough.

It’s Not About Quantity

The test for infringement – that is, reproduction of a substantial part – is not about how much was copied.  That is, it is not a quantitative test.

It is actually a qualitative test – it is all about the quality of what was copied.  That is, how important to the whole copyright work is the part that was reproduced?

Indirect liability: authorisation

Australian law also recognises authorisation liability.

If you help or encourage infringement, or fail to take reasonable steps to prevent it (for example, running a platform that hosts pirated content without safeguards), you can be liable too.

Remedies: what can you do?

Rights holders can seek:

• Injunctions (court orders to stop the infringement)

• Damages (compensation for loss)

• Account of profits (handing over profits earned from the infringement)

• Additional damages (where the infringement is flagrant or in bad faith)

• Delivery up or destruction of infringing copies

Practical enforcement

Litigation isn’t always the first step. Often, a cease-and-desist letter, a platform takedown request, or a negotiated licence can resolve disputes faster and cheaper.

Enforcement is as much about strategy as law.

Next up in our Copy That series:
Part 9 – International Protection: Does My Copyright Travel?

Copy That, Part 7: Licensing and Assignment: How to Use and Share Copyright

Owning copyright doesn’t mean you have to keep it locked away. In fact, some of the most powerful uses of copyright come from sharing it—on your terms. That’s where licensing and assignment come in.

Licensing: permission with strings attached

A licence is essentially permission for someone else to use your work in a certain way. You remain the owner, but you set the rules.

Licences can be:

• Exclusive – only the licensee can use the work in that way (even you, the owner, may be excluded). Exclusive licences should always be in writing.

• Non-exclusive – you can license the same rights to multiple people at the same time.

• Implied – sometimes the circumstances imply a licence (e.g. sending your customer a graphical design they asked you to make for their business cards implies they can have it copied on to their business cards). But relying on implication is risky—always better to spell it out.

Creative industries often use open licences like Creative Commons to allow broad, standardised sharing. These licences can be very flexible, but once granted, they can’t easily be revoked.

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Sidebar: Creative Commons vs Copyleft

These two often get confused, but they’re not the same thing.

• Creative Commons (CC):
  A suite of standard licences that creators can choose from. Some are very open (like CC0, which waives rights), while others are more restrictive (like CC BY-NC, which bars commercial use).

• Copyleft:
  A philosophy that says: you can use, modify, and share this work freely, but if you create something new from it, you must share that new work under the same terms.

• Where they overlap:
  Some Creative Commons licences, like CC BY-SA, include a “ShareAlike” condition. That’s essentially a form of copyleft—any derivatives must be licensed the same way. But not all Creative Commons licences have this feature.

👉 In short: Creative Commons is a toolkit of licences. Copyleft is a principle. Some CC licences apply copyleft; others don’t.

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Assignment: a permanent transfer

An assignment is different: it transfers ownership itself.

• Assignments must be in writing and signed by the current owner.

• They can cover all rights, or just some (e.g. assigning film rights but keeping publishing rights).

• Once assigned, the new owner steps into your shoes and can enforce copyright as if they were the creator.

Assignments are common in publishing contracts, music catalogues, software acquisitions, and business sales.

Why the distinction matters

• A licence gives someone permission; you still own the copyright.

• An assignment gives someone ownership; you no longer do.

Mixing the two up in a contract can cause years of confusion—or even litigation.

IP Mojo tip: share smart, not loose

When letting others use your work, always be clear:

• Who is allowed to use it

• What they can do with it

• Where and for how long they can use it

• Whether the permission is exclusive or not

• How much (if anything) they’ll pay for it

That clarity is what turns copyright from a legal safety net into a practical business tool.

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Next up in our Copy That series:
Part 8 – Infringement and Enforcement: What Happens When It Goes Wrong
Because copyright only matters if you can enforce it when lines are crossed.

Copy That, Part 6 – Copyright and the Digital Age: Online Use, Streaming, and AI

If it’s online, it’s free to use… right? Wrong.

Copyright applies just as much to digital works as it does to a printed novel or a painting hanging in a gallery. The internet hasn’t erased the rules—it’s just made them easier to break (and harder to track).

Online sharing is still “publication”

Uploading a work—whether to YouTube, Instagram, or your company’s website—is a “communication to the public” under the Copyright Act. That means:

• If it’s your work, you control whether and how it’s shared.

• If it’s someone else’s, you need their permission unless an exception applies.

Tip: Even sharing a photo on your social media page can be infringement if you don’t have rights to it.

Embedding and linking: a grey zone

In Australia, simply linking to material usually isn’t infringement—unless you link to content you know (or should know) is infringing.

However, embedding (e.g. showing a YouTube video directly on your site) can raise trickier questions, especially if the embedded content bypasses restrictions or was uploaded without authorisation.

User-generated content and platforms

Social media and content-sharing platforms rely on a mix of:

• User agreements (you often grant them a licence to your uploads)

• “Safe harbour” provisions (protecting platforms if they remove infringing content when notified)

But these protections don’t extend to users—you’re still liable for what you upload.

Streaming and digital downloads

Streaming is also a “communication to the public.” Legitimate streaming services obtain licences for the works they make available. Watching or listening on a licensed platform is fine—streaming from pirate sources is not.

Downloading from an infringing source creates a copy and may compound the infringement.

AI and copyright: the hot debate

Training AI models on copyright-protected material is a live legal issue worldwide.

• In Australia: There’s no explicit exception (at least, not yet – the Australian government is presently considering that very thing) for AI training. If training involves making reproductions of protected works, it could be infringement unless licensed or covered by an exception.

• Courts haven’t ruled definitively here yet, but watch this space—policy reform is on the horizon.

Digital rights management (DRM)

Circumventing technological protection measures (like paywalls or anti-copying code) is generally illegal, even if your intended use might otherwise fall within an exception like fair dealing.

IP Mojo tip: Think “offline rules in an online world”

The digital age hasn’t changed the essence of copyright law—it’s just made the boundaries blurrier. If you wouldn’t photocopy and distribute it offline without permission, don’t assume you can do the online equivalent.

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Next up in our Copy That series:
Part 7 – Licensing and Assignment: How to Use and Share Copyright
Because sometimes you want others to use your work—and you need the right tools to do it on your terms.

Copy That, Part 5 – Exceptions and Limitations: Fair Dealing in Australia

There’s a common misconception that “if I’m not making money from it, it’s fine.” Not so.

In Australia, there are only very specific circumstances where you can use someone else’s copyright material without permission—and they’re called fair dealing exceptions.

These are not catch-all “free use” rules. They’re targeted, purpose-driven carve-outs in the Copyright Act, and if you step outside them, you risk infringement.

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The five main fair dealing purposes

You can use copyright material without permission if your use is fair and is for one of these legally recognised purposes:

1. Research or study

   • This includes both academic and private study.

   • Factors like the amount used and the purpose matter—copying an entire textbook probably isn’t “fair.”

2. Criticism or review

   • The material must genuinely be part of a critique or review, and you must provide sufficient acknowledgment of the source.

3. Parody or satire

   • This can be humorous or biting, but must be a genuine parody or satire—not just borrowing the work for entertainment value.

4. Reporting the news

   • Use must be connected to an actual news report, not just general commentary. Proper attribution is required.

5. Giving professional legal advice

   • Lawyers can use works as part of providing legal advice to clients.

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The fairness test

Even if you meet one of the above purposes, your use must also be “fair.”  Courts look at factors such as:

• The purpose and character of your use

• The nature of the work

• The amount and substantiality of the portion used

• Whether your use competes with or harms the market for the work

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Not to be confused with US “fair use”

The US doctrine of “fair use” is broader and more flexible. Australia’s fair dealing is narrow—if your use doesn’t fit one of the listed purposes, there’s no exception, no matter how “reasonable” it seems.

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IP Mojo tip: When in doubt, get permission

Fair dealing can be a powerful defence, but it’s not a free pass. If you’re outside the scope of the exceptions, or if “fairness” is debatable, permission (or a licence) is the safest route.

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Next up in our Copy That series:
Part 6 – Copyright and the Digital Age: Online Use, Streaming, and AI
Because copyright law applies online too—and the rules can surprise you.

Copy That, Part 4 – Copyright Duration and the Public Domain

Nothing lasts forever—not even copyright.

In Australia, copyright protection is generous, but it isn’t permanent. Once it expires, the work enters the public domain, where anyone can use it freely without permission or payment. For creators, this means a valuable asset eventually becomes a shared cultural resource. For users, it’s an open invitation to repurpose, remix, and reimagine.

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How long does copyright last?

It depends on the type of work:

• Literary, dramatic, musical, and artistic works: Life of the creator plus 70 years.

• Films and sound recordings: Generally 70 years from the year of first publication.

• Broadcasts: 50 years from the year of broadcast.

• Published editions: 25 years from first publication (protects the typographical arrangement, not the content).

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Why the long tail?

The “life + 70 years” rule aligns Australia with most of its major trading partners. The idea is that copyright rewards creators and their estates for decades after creation—often long enough to benefit children and grandchildren—while ensuring that, eventually, the work joins the public’s shared heritage.

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The public domain: free, but not always simple

When a work falls into the public domain, you can:

• Copy, adapt, and distribute it without permission

• Use it in new creations (films, books, merchandise, etc.)

• Monetise it without paying royalties

But be careful:

• New editions, translations, or adaptations of a public domain work can have their own copyright.

• Moral rights still apply—meaning you may still need to credit the original creator or avoid derogatory treatment.

• Other rights (like trade marks or cultural heritage protections) can limit how you use older works.

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IP Mojo tip: double-check before you dive in

Don’t assume a work is in the public domain just because it’s “old” or freely available online. Confirm the date of creation and publication, and check whether there have been later editions or modifications that might still be protected.

Please note images you find in Google Images or that pop up in your searches irrespective of the search engine you use, are generally not in the public domain and may well be protected by copyright.  That should be your assumption until proven otherwise – don’t assume it’s public domain … find out first!

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Next up in our Copy That series:
Part 5 – Exceptions and Limitations: Fair Dealing in Australia
Because yes, there are times you can use someone else’s work without asking first—but they’re narrower than you might think.