AUSTRALIA Law and Practice Contributed by: Sven Burchartz and Jessica Bell, Kalus Kenny Intelex
Defences for Copyright Infringement Common exceptions and defences to copyright infringement include: • fair dealings with the copyright works (which includes use in reporting, for research, review or criticism); • certain private or incidental dealings with copyright works and other subject matter; and • educational copying and archiving of works. No Specific Database Right There is no specific law in Australia providing for database rights, which means that databases may only be protected in Australia if they fall within the scope of protection offered by the Copyright Act. The Copyright Act will likely only cover a database in respect of the compilation of the data, and provided that the creators used intellectual effort in creating the database, and that the database itself is sufficiently original. Copyright and Australian Sport In 2019, the AFL issued a cease-and-desist notice for copyright infringement to a company called League Tees. The AFL alleged that a line of t-shirts and badges marketed and sold by League Tees featured an iconic photograph of an AFL Women’s League player that was taken by AFL Media’s chief photographer, infringed the copyright of the AFL. Whilst League Tees main - tained a position that their designs were sub - stantially different from the photograph, they ulti - mately withdrew the products from the market. 5.3 Image Rights and Other IP No Image Rights in Australia In Australia, there is no legally recognised image right. This means that the protection of an ath - lete’s image is not a specific cause of action. Instead, a number of other more traditional
• some geographical names; • marks containing common surnames; • certain words related to banking and financial services; and • certain prohibited signs and marks which are scandalous by nature or contrary to law. The Benefits of Registration The benefits of having a registered trade mark include that: • the registered owner will have the exclusive right to use the mark in respect of the goods and services covered by the registration; and • the registered owner will have the right to bring an action against anyone using a mark that is substantially identical or deceptively similar mark to the registered owner’s regis - tered mark, in respect of the same or similar goods or services and where customers are In Australia, copyright law is contained in the Copyright Act 1968 (Copyright Act). There is no system of copyright registration in Australia. Instead, subject to certain requirements, particu - lar forms of expression (including text, images and music), are automatically protected by cop - yright under the Copyright Act. For example, Section 101 of the Copyright Act provides that the copyright in a literary, dramatic, musical or artistic work “is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copy- right, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright.” This includes using or reproducing the copyright works and offering articles for sale which contain infringing copyright material. likely to be deceived or confused. 5.2 Copyright/Database Rights Australian Copyright Law
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