Frequently Asked Questions

Q: What are the laws relating to copyright infringement via authorisation?

When trying to determine whether copyright infringement has been authorised, there are a number of things to consider when making such a determination.

First, when considering whether an infringing act has been authorised, it is essential to ascertain the primary infringing act that has a causal connection to the authorising act.

The decision of the University of NSW v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 was seen to be the benchmark case for copyright infringement via authorising acts. The High Court held that the University of New South Wales library had authorised the reproduction of copyrighted material by operating photocopying machines that exercised no supervision or control over what materials were being copied by students, which amounted to the authorisation of making infringing copies of protected materials.

The rules established in Moorhouse can be found in s 36 of the Copyright Act 1968(Cth) (the Act), which states that whether a person has authorised an infringing act without the licence of the owner of the copyright, the matters to be considered include:

·         the extent, if any, of the person’s power to prevent the act concerned;

·         the nature of the relationship that exists between the person and the person who did the act concerned;

·         whether the person took reasonable steps in preventing or avoiding the doing of the act, including whether there was compliance with any relevant industry codes of practice.

The above list is not comprehensive and does not include other factors such as the respondent’s knowledge of the copyright infringement (per Cooper v Universal Music Australia Pty Ltd (2006) FCAFC 187).  

Looking to s 112E of the Act in relation to entities, states the following:

Communication by use of certain facilities

                   A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.


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