Commonwealth Consolidated Acts

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Actions for infringement

             (1)  Subject to this Act, the owner of a copyright may bring an action for an infringement of the copyright.

             (2)  Subject to this Act, the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

             (3)  Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.

             (4)  Where, in an action under this section:

                     (a)  an infringement of copyright is established; and

                     (b)  the court is satisfied that it is proper to do so, having regard to:

                              (i)  the flagrancy of the infringement; and

                            (ia)  the need to deter similar infringements of copyright; and

                            (ib)  the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and

                             (ii)  whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and

                            (iii)  any benefit shown to have accrued to the defendant by reason of the infringement; and

                            (iv)  all other relevant matters;

the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.

Consideration for relief for electronic commercial infringement

             (5)  Subsection (6) applies to a court hearing an action for infringement of copyright if the court is satisfied that:

                     (a)  the infringement (the proved infringement ) occurred (whether as a result of the doing of an act comprised in the copyright, the authorising of the doing of such an act or the doing of another act); and

                     (b)  the proved infringement involved a communication of a work or other subject-matter to the public; and

                     (c)  because the work or other subject-matter was communicated to the public, it is likely that there were other infringements (the likely infringements ) of the copyright by the defendant that the plaintiff did not prove in the action; and

                     (d)  taken together, the proved infringement and likely infringements were on a commercial scale.

             (6)  The court may have regard to the likelihood of the likely infringements (as well as the proved infringement) in deciding what relief to grant in the action.

             (7)  In determining for the purposes of paragraph (5)(d) whether, taken together, the proved infringement and the likely infringements were on a commercial scale, the following matters are to be taken into account:

                     (a)  the volume and value of any articles that:

                              (i)  are infringing copies that constitute the proved infringement; or

                             (ii)  assuming the likely infringements actually occurred, would be infringing copies constituting those infringements;

                     (b)  any other relevant matter.

             (8)  In subsection (7):

"article" includes a reproduction or copy of a work or other subject-matter, being a reproduction or copy in electronic form.

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