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Landmark Judgment on Authorisation of Copyright Infringement
20/04/2012

The landmark iiNet dispute has concluded today with the High Court handing down its judgment in favour of iiNet. The Court unanimously held that iiNet had no direct power to prevent its account holders from using the BitTorrent system to infringe copyright in the appellants’ films. It also held that the information contained in the AFACT notices did not provide iiNet with a sufficient basis to take action. It therefore held that iiNet had not authorised the infringements.

 

The key issue before the High Court was the level of knowledge required before an internet service provider (ISP) will be found liable for authorising copyright infringements carried out by account holders, through the provision of access to the internet [1].

 

The dispute began in November 2008 [2] when several major film and television studios, (with the assistance of the Australian Federation Against Copyright Theft (AFACT)), filed an action in the Federal Court of Australia against internet service provider iiNet, alleging it had authorised the peer-to-peer file sharing activities of its users.

 

The Copyright Act contains provisions which enable an ISP to limit their liability for infringements that take place on their network. For example, if an ISP receives notice of allegedly infringing material on its network and promptly takes it down, it is likely to fall within the ‘‘safe harbour”. In the present case, AFACT had employed a company known as DtecNet to investigate and collect data on infringing activity carried out by iiNet account holders. It sent iiNet numerous notices with details of the infringements, and invited it to cancel, suspend or restrict the accounts of the customers mentioned in the notices. iiNet failed to take any action [3].

 

The scope of authorisation has been judicially examined in numerous cases, including the High Court decision of Moorhouse, in which the University of New South Wales was held liable for infringements carried out on photocopiers placed in its library [4]. Since then, there have been several other cases examining the issue. The iiNet litigation is the first of its kind to specifically consider whether an ISP can be held liable for infringements committed by account holders through the provision of internet access.

 

The safe harbour provisions also refer to any relevant industry code of conduct. While the iiNet litigation has been proceeding, industry players have been negotiating a code of conduct (For more information, click here). It is hoped that the outcome of the High Court’s decision will provide certainty for all concerned, and will provide a basis for the finalisation of the negotiations.

 

To view the summary, see: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf

 

To view the High Court judgment, see: http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html or at

http://jade.barnet.com.au/Jade.html#article=263754

 

[1] Roadshow Films Pty Ltd & Ors v iiNet Limited [2011] HCATrans 323 (30 November 2011)

[2] http://apcprojects.com/iinetdocs/iiNetApplication.pdf

[3] Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 (24 February 2011), at 195

[4] UNSW v Moorhouse [1975] HCA 26 (1975)