Game piracy in Australia and the copyright obligations for gaming businesses

If your business installs games, hosts game files, sells games or consoles, runs a gaming venue, or operates a platform where users share content, copyright law governs what you can do with those games. Under the Copyright Act 1968 (Cth), a game is protected in the same way as a literary work, and the owner holds exclusive rights to copy it, publish it, perform it in public and communicate it to the public. "Piracy" is simply shorthand for doing any of those things without permission: downloading cracked games, hosting ROMs for others, selling counterfeit copies, or running unlicensed software across your machines.

These obligations matter more to businesses than to individuals. Commercial use is where rights holders focus their enforcement, and the Act contains provisions that can catch a business even when it never touched a pirate file itself. A venue operator, marketplace owner or community manager can be liable for authorising the infringement of others. This guide sets out who the obligations apply to, the specific duties a gaming business must meet, the consequences of getting it wrong, and a practical compliance checklist.

Who these obligations apply to

There is no turnover threshold or licence requirement that switches copyright law on. The obligations attach the moment your business does something that only the copyright owner may do: reproduce a game, make it available online, perform it in public, or deal in devices designed to get around copy protection. In practice, the businesses most exposed are:

Venues: cafes, arcades, bars and esports venues that install games on PCs or consoles, or run tournaments and streaming screens for patrons.
Retailers and resellers: shops selling games, consoles and accessories, including second-hand and import stock.
Platforms and communities: websites, marketplaces, forums, mod communities and social channels where users can upload, link to or share game content.
Studios and tool developers: indie developers using third-party assets, engines, middleware, music or art, and businesses that publish their own games.
Anyone hosting files: even a business website that happens to carry ROMs, ISOs, save files or "full game" archives.

If your business fits any of these descriptions, the duties below apply to you. The sections that follow are the ones that generate the most claims against Australian businesses.

Licence every game you install and run

Copyright in a literary work includes the exclusive right to reproduce the work in a material form (s 31 of the Copyright Act 1968 (Cth)). Installing a game onto a machine is a reproduction of that kind, and running it for your customers without a licence is infringement. Owning a physical copy is not the same as being licensed to install that copy on multiple machines for commercial play. A disc bought for home use does not authorise a venue to load the same title onto twenty PCs.

The Act allows a backup copy of a computer program to be made in narrow circumstances. Under s 47C, a backup can only be made by or on behalf of the owner or licensee of the original copy, only for their own use, and typically to replace a copy that is lost, destroyed or unusable. It does not allow a venue to keep a "master" backup and install it across its machines, and it never permits distributing a copy to anyone else.

Many publishers sell commercial venue licences that permit installation across a defined number of machines for public play. That is the licence you should rely on. Keep the receipt, the licence terms and a record of which machines the title is installed on, because if a rights holder asks questions, that record is your evidence.

Never make games available online

The exclusive right to communicate the work to the public includes making it available online. The Act defines "communicate" as making content available online or electronically transmitting it, which is why hosting a ROM or ISO on your website, offering a download link, or running a server that others can pull files from is direct infringement, not a grey area.

This duty extends beyond files you host yourself. In Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187, the Full Federal Court found a website operator liable for authorising infringement where his site provided hyperlinks to infringing MP3s hosted on remote servers. The operator knew the recordings were infringing, he had the power to control the site by removing the links, and he had structured the site so that remote operators could add links automatically. Linking to pirated content can therefore be riskier than it looks, particularly if you curate the links, profit from the traffic or fail to remove them when told about them.

Do not deal in circumvention devices or services

Australian law separately prohibits dealing with devices and services that circumvent technological protection measures, the copy protection that publishers put on games and consoles. This is what catches mod chips, "jailbreak" services and similar products that let a console run unauthorised copies.

A rights holder can sue over the manufacture, import, distribution, offer or supply of a circumvention device (s 116AO), and over providing or offering a circumvention service (s 116AP). The same conduct is criminal when done with the intention of obtaining a commercial advantage or profit: manufacturing or supplying a circumvention device, or providing a circumvention service, carries a maximum penalty of 550 penalty units or five years' imprisonment, or both (s 132APD and s 132APE). Penalty units are indexed and are worth several hundred dollars each, and a corporation can be fined up to five times the maximum fine. The Act does contain narrow exceptions, such as genuine interoperability work, but selling, advertising or installing mod chips as part of your business is squarely within the red zone. If customers ask about modding, steer them to publisher-approved upgrades and legitimate content instead.

Prevent authorisation liability on your platforms

A person infringes copyright not only by doing a protected act themselves but by authorising it (s 36 of the Copyright Act 1968 (Cth)). In deciding whether authorisation has occurred, the Act directs the court to consider the extent of the person's power to prevent the infringement, the nature of their relationship with the person who did it, and whether they took reasonable steps to prevent it, including complying with any relevant industry codes of practice. Authorisation is therefore a real risk for platform operators, marketplace owners, venue operators and community managers, because they typically have the power to control what happens on their systems.

The case law shows both sides of the line. In Cooper v Universal Music, the court inferred that the website operator had permitted and approved the infringing downloads because he could have removed the links and did not. By contrast, in Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16, the High Court held that an internet service provider did not authorise its customers' file sharing: the ISP's only realistic lever was terminating customer accounts, and the court did not treat that as a reasonable step it was obliged to take. The distinction that matters is whether your business provides the means of infringement and controls the space where it happens.

Two further points are worth knowing. Mere knowledge that infringement is happening is not itself authorisation, and the Act expressly provides that a person who merely supplies the facilities for a communication, such as an internet connection, is not taken to have authorised infringement just because someone uses those facilities. But a business that hosts uploads, curates links or moderates a community occupies a different position. The reasonable steps that protect you are publishing clear rules against pirated content, providing a simple reporting pathway, acting on complaints quickly, enforcing your rules consistently and documenting what you did. A published acceptable use policy is not decoration; it is the record of the reasonable steps you took.

Respect licences, EULAs and venue rights

Publisher end user licence agreements and platform terms are contracts, and they commonly restrict commercial use, streaming, modding and redistribution. If you use games in a venue, run tournaments or stream gameplay to patrons, check whether your use is permitted under the publisher's terms or whether a specific commercial licence is needed. Public performance raises separate licensing questions: background music in a venue, tournament broadcasts and on-screen footage can each require permissions from the relevant rights holders, and the publishers' fan content policies vary widely, so check the policy for each title rather than assuming a blanket permission.

If you sell games, consoles or subscriptions, the Australian Consumer Law adds a marketing layer. Section 18 of the ACL, which sits in Schedule 2 of the Competition and Consumer Act 2010 (Cth), prohibits misleading or deceptive conduct in trade or commerce. Copyright compliance does not excuse a misleading claim, and it does not exempt you from the usual obligations around quality and refunds. The two regimes run in parallel.

What "abandonware" and "backups" actually mean

"Abandonware" is not a legal category. Copyright in a work lasts until 70 years after the calendar year of the author's death, or 70 years after first publication for works where the author is unknown (s 33). Almost every commercially released game from the past half century is still protected, and the fact that a title is old, out of print or no longer sold does not make it free to copy, host or distribute. As set out above, the backup allowance in s 47C is narrow and personal to the owner of the original copy. It is not a basis for a business to hold a library of "vintage" ROMs for patrons to download.

What happens if your business gets it wrong

Copyright infringement exposes a business to civil action by the rights holder, and commercial-scale infringement is a criminal offence. The consequences run in layers:

Civil remedies: A rights holder can sue for infringement and seek court orders including injunctions and damages, and the losing party generally pays costs. For online infringement the Act also allows the Federal Court to order carriage service providers to block access to overseas sites whose primary purpose or effect is to infringe copyright (s 115A). That is the mechanism behind the site-blocking orders that have steadily removed major pirate sites from Australian internet access, and it shows how seriously the courts treat online piracy.
Criminal penalties: Infringement on a commercial scale that substantially prejudices the copyright owner is an offence carrying a maximum of 550 penalty units or five years' imprisonment, or both (s 132AC). Making or distributing infringing copies commercially (s 132AD and s 132AI) and dealing in circumvention devices for profit (s 132APD) carry the same maxima, and a corporation can be fined up to five times the maximum fine.
Practical consequences: Beyond courts, infringement can mean takedown notices, removal from marketplaces and app stores, payment processor action and reputational damage that is hard to repair in a community-driven industry.

A compliance checklist for game businesses

Run through this checklist before you expand your hardware, take on new content or launch a community feature. It sets out the practical steps that keep a gaming business on the right side of the copyright rules:

Audit your machines and servers: list every game title installed across your PCs, consoles and servers, and mark which ones have a licence covering commercial use.
Keep licence records: store purchase receipts, licence terms and the machine counts each licence covers, and update them when you add or retire hardware.
Centralise installations: restrict who can install software on venue machines so unlicensed titles cannot be added casually.
Publish platform rules: if you run a marketplace, forum or community, publish rules against pirated uploads and links, provide a reporting pathway and document your takedowns.
Train staff: make it clear that "free" ROMs, torrents and cracked software are not to be downloaded, installed or shared on business devices or networks.
Check venue and event rights: confirm publisher commercial terms, music licences and broadcast rights before you stream or screen content to patrons.
Protect your own content: if you publish games, use contributor agreements and asset licences so your studio owns what is created for it, and ship a clear EULA for players.
Treat notices seriously: when a complaint arrives, investigate promptly, remove or disable access while you assess it, and avoid admissions of liability before you understand the facts.

When to bring in a lawyer

An intellectual property lawyer is most useful at the points where the law is genuinely uncertain: whether your platform's moderation practices amount to reasonable steps against authorisation liability, whether a proposed use is covered by a publisher's terms or needs a negotiated commercial licence, and how to structure an EULA, contributor agreement or acceptable use policy that actually protects you. A lawyer can also respond to infringement notices and cease and desist letters, negotiate licences with publishers, and, if your own game is being pirated, run the evidence-gathering and takedown process, including the option of court action where a rogue operator will not stop.

Start with an audit of your own machines and servers

The clearest trigger for copyright liability is on your own hardware, and it is the one you can fix this week. Ask two questions. First, is every title installed on our machines and hosted on our servers covered by a licence that permits commercial use? Second, if a user uploaded a pirated game to our platform today, would we have a documented process to take it down, notify the uploader and prove we acted? If the answer to either is no, close that gap before it closes on you. And if you are holding a "vintage" library in the hope that old games are fair game, remember that copyright runs for 70 years after the author's death: almost every commercial title of the last half century is still protected, and "abandonware" will not be your defence.