Home' Policy Magazine : Policy Vol 30 - No 3 Contents 22 POLICY • Vol. 30 No. 3 • Spring 2014
Copyright iN the iNterNet Age
cultural development. As such, copyright law
must fnd a balance between the private interests
of rights holders, who want revenue as well as
further investment, against the public interest of
sociocultural development, a product of the ability
to disseminate content. Leaning too far toward the
former or the latter creates economic and cultural
As it currently stands, Australian copyright
law does not strike the right balance. Te Abbott
government’s recent attempts at reform have
had the benefcial efect of bringing the relevant
stakeholders into dialogue with each other.
However, the proposed reforms themselves are
critically fawed and overly stringent. Te most
restrictive of the proposed regulations are the
changes to authorisation liability and the website
Extended Authorisation Liability
Authorisation liability, as defned by the High
Court in University of New South Wales v. Moorhouse
(1975), refers to when an entity has under its control
a means by which copyright may be infringed, is
aware or has reason to suspect that the means could
be used to infringe, and fails to take reasonable steps
to limit the ability to infringe.
Central to establishing authorisation liability is
‘control’. Mere facilitation or knowledge that there
is a likelihood of infringing conduct is insufcient,
as Justice Bennett stated in Australasian Performing
Right Association Ltd v. Metro on George Pty Ltd
Te government’s reforms would involve an
extension of liability, shifting a greater burden onto
ISPs. Te proposals state that ‘even where an ISP
does not have direct power to prevent a person from
doing a particular infringing act, there may still be
reasonable steps that can be taken by the ISP to
Tis essentially seeks to remove the ‘control’
element. e signi cance of 'control' to nding
authorisation liability is that it provides a way to
distinguish between those who have the ability to
control infringement but decline to do so, and those
who are simply intermediaries to infringement
actions. Removing control as a necessary element
of liability means that this distinction will be lost,
changing the legal landscape for all parties involved.
Te implications of such an amendment have not
been experienced in practice, so there is potential
for unforeseen confusion---especially considering
the strong precedent against authorisation reforms
in the judgement in Roadshow Films Pty Ltd v. iiNet.
e iiNet judgement found that ISPs have no direct
control over the actions of their users on torrent
networks. Te level of control exercised by iiNet
over the P2P site BitTorrent.com was insufcient
to constitute a reasonable exercise of power, and
as such, there was no expectation or statutory
obligation for iiNet to remove infringing material.
is precedent is consistent with national and
international case law, so the decision is likely to
hold into the foreseeable future.
From a practical point of view, the burden on ISPs
under the government’s proposed scheme would be
signifcant. A precautionary example can be seen
in the case of New Zealand, which enlisted ISPs
in its anti-copyright-infringement notice scheme.
Under the New Zealand scheme, rights holders
can issue warnings to users through ISPs, and after
three warnings the case can be brought before the
Copyright Tribunal, which can require users to pay
up to NZ$15,000 in damages and can also suspend
users’ accounts for up to six months. Rights holders
have not made much use of this scheme, citing the
charge of $25 per infringement notice as a deterrent.
Tat price covers only a fraction of the ISPs’ costs.
Website Blocking Injunctions
Te government has also proposed a piracy
site takedown regime. Tis amendment to the
Copyright Act would enable rights holders to apply
for a court order against ISPs to block access to any
website operated outside of Australia that has the
'dominant purpose' of infringing copyright.
According to the government’s Online Copyright
Infringement Discussion Paper, the idea behind a
'dominant purpose' test is to determine whether
the main function of a site is to provide infringing
content. However, because the standard is relatively
vague and arbitrary, this amendment could lead
The burden on ISPs under the government's
proposed scheme would be signi cant.
Links Archive Policy Vol 30 - No 2 Policy Vol 30 - No 4 Navigation Previous Page Next Page