intellectualpropertista

HCA iiNet wins in HCA (20 April 2012)

In Copyright, HCA on 30 April 2012 at 21:14

Roadshow Films Pty Ltd & Ors v iiNet Ltd

The High Court of Australia (“HCA”) has unanimously dismissed an appeal in a case against internet service provider (“ISP”) iiNet. The case concerned ‘authorization’ to infringe within the meaning of section 101(1A) of the Australian Copyright Act 1968.

Roadshow Films and other members of the Australian Federation Against Copyright Theft (‘AFACT’) had alleged that iiNet ‘authorised’ its subscribers to engage in copyright-infringing downloading of material owned by AFACT members. Their appeal to the HCA followed iiNet’s majority victory before a Full Bench of the Federal Court of Australia, and its win at first instance.

The HCA found that iiNet was not technically in control of the BitTorrent system used by its subscribers to download infringing content, and that it did not authorize infringement. A summary issued by the HCA stated:

“The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films. Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts. For these reasons, the Court held that it could not be inferred from iiNet’s inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants’ films by its customers.”

The HCA decision leaves open the possibility that ISPs could still be found to have authorized infringement in situations in which a rights-holder provided an ISP with more specific information.

It also paves the way for legislative change in this area of copyright law. The decision of French CJ, Crennan and Kiefel JJ noted:

“This final conclusion shows that the concept and the principles of the statutory tort of authorisation of copyright infringement are not readily suited to enforcing the rights of copyright owners in respect of widespread infringements occasioned by peer-to-peer file sharing, as occurs with the BitTorrent system.” (para.79)

In a Press Release issued shortly after the HCA’s judgment was delivered, AFACT Managing Director Neil Gane called for legislative change, stating:

“Both judgements in this case recognise that copyright law is no longer equipped to deal with the rate of technological change we have seen since the law of authorisation was last tested. They both point to the need for legislation to protect copyright owners against P2P infringements… Now that we have taken this issue to the highest court in the land, it is time for Government to act. We are confident the Government would not want copyright infringement to go on unabated across Australian networks especially with the rollout of the NBN.”

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