Background

On 20 November 2008, the Australian Federation Against Copyright Theft (AFACT) representing 34 film companies including Universal Pictures, Sony Pictures Entertainment, Village Roadshow, Warner Bros Entertainment, the Seven Networks, Twentieth Century Fox Film Corporation, and others commenced a lawsuit against one of Australia’s largest internet service providers (ISPs), iiNet, in Federal Court of Australia. AFACT alleged that iiNet had authorized its users to download illegal movies through peer-to-peer network (BitTorrent) and thus should be liable for the copyright infringement.

AFAC had conducted investigations into copyright infringement and sent notices to iiNet from July 2008. The notices did not include AFACT’s detection methodology but requested iiNet to warn, suspend or terminate the internet service of its users to stop the copyright infringement. iiNet did not ast as requested and claiming that it is not iiNet’s responsibility to take actions based on AFACT’s allegations and the offence should have been proven in the courts before iiNet can disconnect its customer’s internet.

This case was finally taken to the High Court by AFACT after iiNet won the lawsuit in the Federal Court. However, the High Court made its decision on 20 April 2012 in favor of iiNet and dismissed AFACT’s appeal. The High Court held that the power that iiNet had to prevent its customer from copyright infringement was indirect as iiNet had no control of torrents file sharing. In addition, the High Court also considered the notice sent by AFACT which did not include its methodology was not sufficient for iiNet to take actions.

ISP’s Responsibility

As a consequence of iiNet’s winning, copyright holders will now hard to prove ISPs are liable for their customers’ copyright infringements which make it more difficult for copyright holders to protect their rights. This raises the issue of whether ISPs should be liable for their users’ copyright infringement.

Copyright Enforcement

From ISPs’ perspective, making service providers responsible for their actual users’ behavior is not fair for them and this argument is generally supported by courts (Kidman 2011). In iiNet’s case, the core factors contribute to iiNet’s winning is its indirect power to prevent the copyright infringement as well as AFACT’s insufficient information on the notices which made the High Court held that it was not unreasonable for iiNet to act as it did (Bushby & Webb 2012). The High Court made this decision based on subsection 101(1A) of the Copyright Act 1968 which determines the authorization liability (Swinn 2012). However, the Chief Justice French, Justices Crennan and Kiefel also noted that this provision was not ready to suit to BitTorrent copyright infringement and needs to be changed (Webb 2012).

Australian ISPs started their engagement in online copyright infringement prevention in 2011 when they were facing ongoing push from the filming industry (Kidman 2011). Five major Australian ISPs including Telstra, Optus, iiNet, Primus, and Internode proposed an online copyright enforcement scheme through Communication Alliance. Very similar to Europe’s “three strike” approach, the scheme was education-based that ISPs will send education and warning notice to their customer who downloads unauthorized files from internet and being detected by copyright owners. Australia’s ISPs agreed on this scheme and started an 18 month trial in 2011 (Colley 2011). However, under this scheme, ISPs will not impose any sanctions against their customers or disconnect their internet access.

Legislative Reform

A lawsuit against ISPs is not an effective way but expensive way for copyright owners to protect their rights (Muir 2012). In iiNet’s case, AFACT was ordered by the High Court to pay iiNet’s legal expenses which was said to be approximately 9 million (iiNet Press 2012). Traditional legal action against individuals is also inefficient and ineffective due to large number of infringers and technically sophisticated internet users.

Thus, copyright owners now turn to government to introduce new policy to force ISPs to be more active in online copyright infringement prevention. Some countries such as UK, New Zealand, and France, are in the process of implementing or have implemented a statutory approach through amending the law. Australian government has also recently released a “Online Copyright Infringement Discussion Paper” which outlines 3 proposals to amend the Copyright Act 1968 (Webb 2014).

Propose 1 – Extended Authorization Liability. This amendment is directly derived from iiNet’s case and proposing the court need also taking ISPs’ reasonable steps to prevent online copyright infringement into consideration as well as their power.
Propose 2 – Extended Injunctive Relief. This amendment will enable copyright owners to request ISPs to block infringement websites outside Australia.
Propose 3 – Extended Safe Harbor Scheme. This amendment extends the application of the safe harbor scheme from carriage provider to all service providers.

Balancing Intellectual Property and Other Rights

The government discussion paper shows policy-maker’s effort to support Australia’s copyright industries. It is reasonable for copyright owners to seek government to improve the situation in this digital world. However, a balance between protecting copyrights and basic human rights, such as privacy, should also be taken into consideration (Muir 2012). Muir (2012) points out that the copyright owner’s ability to enforce their rights and Internet user’s rights including privacy, access to Internet and freedom of speech, due process should be balanced.

In Telstra’s response to the government’s discussion paper, it is stated that the extension of authorization liability will significantly shift the balance between copyright holders, Internet users and ISPs’ competing interest which copyright law intend to strike thus is not appropriate (Telstra 2014).

In an Online Copyright Infringement Forum held by Communications Minister Malcolm Turnbull in Sydney also finds out that accessibility, timely, and price of the copyrighted in Australia are also factors contribute to online piracy (Law 2014).

Implications and Conclusion

Traditional remedies for online copyright infringement are hard to address the issue while the more recent approach such as “three strikes” and blocking may also breaking the balance of basic human rights as well as competing interests between all parties (Kiskis 2013). The challenge to implement copyright enforcement scheme is to balance the copyright industry, ISPs, and public interest. Any copyright enforcement measures that are not compatible with human rights may not be successful in the long term (Muir 2012).

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References

Bushby, D., Webb, T. (2012). iiNet wins in high court. Retrieved from http://www.claytonutz.com/publications/videos/iinet_wins_in_high_court_tim_webb.page

Colley, A. (2011). ISPs agree to online copyright enforcement plan. The Australian. Retrieved from http://www.theaustralian.com.au/technology/isps-agree-to-copyright-online-enforcement-plan/story-fn4htb9o-1226206441917

iiNet Press. (2012). iiNet wins landmark copyright case. Retrieved from http://www.iinet.net.au/about/mediacentre/releases/20120420-iiNet-wins-landmark-copyright-case.html

Kidman, A. (2011). Aussie ISPs propose copyright enforcement scheme. Lifehacker. Retrieved from http://www.lifehacker.com.au/2011/11/aussie-isps-propose-copyright-enforcement-scheme/

Kiskis, M. (2013). Novel remedies for intellectual property rights infringement online. Jurisprudence 20(4), 1443-1456. doi: 10.13165/JUR-13-20-4-09.

Law, J. (2014). Online Copyright Infringement forum: can anything stop our nation of pirates. Retrieved from http://www.news.com.au/technology/online/online-copyright-infringement-forum-can-anything-stop-our-nation-of-pirates/story-fnjwneld-1227054171162

Muir, A. (2012). Online copyright enforcement by Internet Service Providers. Journal of Information Science 39 (2), 256-269. doi:10.1177/0165551512463992.

Swinn, M. (2012). Roadshow films v iiNet: the high court of Australia holds that an ISP is not liable for the online copyright infringement. [web log post]. Retrieved from http://www.corrs.com.au/publications/ip-preview/roadshow-films-v-iinet/

Telstra. (2014). Submission to the Attorney-General’s Department Discussion Paper ‘Online Copyright Infringement’. Retrieved from http://www.ag.gov.au/Consultations/Documents/OnlineCopyrightInfringement/OnlineCopyrightInfringement-TelstraResponse.pdf

Webb, T. (2012). iiNet’s High Court win means ISPs must still tread carefully on copyright infringement. [web log post]. Retrieved from http://www.claytonutz.com/publications/news/201204/20/iinets_high_court_win_means_isps_must_still_tread_carefully_on_copyright_infringement.page

Webb, T. (2014). Australian government seeks new ways to limit online copyright infringement in the new discussion paper. Retrieved from http://www.claytonutz.com/publications/edition/07_august_2014/20140807/australian_government_seeks_new_ways_to_limit_online_copyright_infringement_in_new_discussion_paper.page

Online Copyright Infringement – What should we do?