-- JonathanMo - 14 Sep 2015
Infringement: the 'substantial part' requirement
Under section 14(1) of the CA, the infringing act must be done in relation to a 'substantial part' of the copyright work or subject matter. The reproduction or other act need not be done in relation to all the work, therefore, in order for infringement to occur. On the other hand it is possible to copy an 'insubstantial part' of a copyright work without infringing. What is a 'substantial part', however, is subject to interpretation by the courts. There is no precise quantitative or percentage test for a 'substantial part'. The test is 'qualitative' rather than quantitative: even a reproduction of a very small amount of the work could be substantial if the part was critically important. The quoting of a short passage from a long work may infringe copyright if the passage is a paragraph which neatly sums up all that has preceded it. A substantial part may be one of the underlying components or 'sinews' of a work rather than a simple block or section of it, such as a few pages or a few bars. See Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1994) 54 FCR 240; 130 ALR 659; [1995] AIPC 91-116; ,, in which von Doussa J accepted that there were four major matters to be taken into account in deciding whether copying is substantial (at FRC 260):First, the volume of the material taken, bearing in mind that quality is more important than quantity; second, how much of such material is the subject-matter of copyright and how much is not; third, whether there has been an animus furandi on the part of the defendant; this was treated ... as equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour; fourth, the extent to which the plaintiff's and the defendant's (works) are competing works.
Copyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors. Ideas, requests, problems regarding AustLII Communities? Send feedback
This website is using cookies. More info.
That's Fine