Is My Business Liable if an Employee Posts Copyright Material Online?

A business can be liable for copyright infringement that happens through its employees, even when senior managers did not know the post was coming. Saying you did not know is rarely enough once the legal test is applied.

The risk comes through two routes: direct infringement by staff acting in the course of employment, and authorisation where the business had power to prevent the act and did not take reasonable steps.

Two ways a business can be liable

A business can infringe copyright directly through employees acting in the course of their employment, for example by posting a photo, song or clip on the business’s social media account. The post is treated as the business’s act when it is done as part of the job.

A person also infringes by authorising another to do an infringing act. In deciding authorisation, the court considers the extent of the person’s power to prevent the act, the nature of any relationship, and whether reasonable steps were taken to prevent or avoid it (s 36(1A)).

In Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16, the High Court considered authorisation and found the internet provider had not authorised its customers’ infringements on the facts. The reasoning turned on the provider’s limited power and the steps it had taken. A business that directs a marketing calendar, approves assets and controls social accounts is in a different position and will have more difficulty showing it could not prevent the post.

What a notice changes and how to respond

Innocent infringement can limit damages where the defendant was not aware and had no reasonable grounds for suspecting the act was an infringement, but an account of profits and injunctions may still be available (s 115(3)).

Once a business receives a takedown notice or letter of demand, it has knowledge. Continuing use after that point strengthens the claim against it, and the time to argue you did not know has passed.

The copyright safe harbour scheme is limited to specified service providers and is generally not available to an ordinary business, so do not rely on it to avoid liability for staff posts.

Practical steps that reduce exposure are simple and repeatable.

• Rights register: a single list for images, music and footage, with licences on file and expiry dates.
• Approved libraries: only those sources may be used for business posts, with licences that cover commercial social use.
• Policy and training: a short social media policy and periodic training for anyone with posting access, including contractors who post as you.
• Named handler: one person authorised to receive and act on notices, with a backup.
• Prompt removal: remove or replace on complaint, record the action, and review how the asset entered the workflow.

Example

A junior marketing staffer at a Gold Coast cafe posts a reel using a chart hit and a photographer’s image found online. The posts are on the cafe’s account and were scheduled through the cafe’s tool. A week later the photographer’s lawyer sends a demand alleging infringement by the business. Direct infringement and authorisation are both in issue, and the cafe’s ability to show an approved library, a policy and prompt removal will be central. Innocent infringement may affect damages but does not remove the need to account for profits or to comply with an injunction.

See Also

• A creator’s guide to YouTube copyright claims and strikes
• Safe harbour provisions in Australia
• Protecting your intellectual property
• AI compliance policy for business

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.