ISPs propose new system to fight online piracy 29/11/2011

Just days before the High Court of Australia is due to hear an appeal in the iiNet matter (30 Nov - 2 Dec), an industry body representing Australian ISPs, the Communications Alliance, has released a proposal to address online copyright infringement.


Telstra Bigpond, Optus, iiNet, iPrimus and internode are all signatories to the Communications Alliance proposal, under which users would receive an education notice if suspected of online infringement. Repeat infringers could attract up to three warning notices within a 12-month period, after which their details could be passed on to copyright holders to allow for legal action.


To read the Communications Alliance proposal, go to:

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Meltwater case to be re-examined in the UK Supreme Court 29/11/2011

The UK’s “temporary copying” exception is likely to be at issue in an appeal of the decision in the Meltwater News case by the Public Relations Consultants Association (PRCA).


According to recent reports, the PRCA’s appeal of the decision made by the UK Court of Appeals will focus on whether the end users of the Meltwater News media monitoring service are covered by the UK “temporary copying” exception when they access web pages through the service [1].


The public relations group Meltwater offers UK businesses a paid-for online media monitoring service. In January 2009, the NLA – a copyright collecting society acting on behalf of the majority of the UK’s national newspapers – introduced licences to cover paid-for online media monitoring services such as those offered by Meltwater. Under the new licences, the NLA requires payment from media monitoring services crawling its content, as well as payment from the end-users receiving the service [2].


Meltwater argued that the use of the monitoring reports by end users does not infringe copyright and so their clients do not need a licence. However, in July this year, the Court of Appeal found that the receipt and use by an end-user of Meltwater news would constitute an infringement in either, or both, the headlines or the articles on the publisher websites [3].


The PRCA has said in a recent press release that the licensing schemes have, “resulted in an interpretation of UK copyright law by the Court of Appeal which effectively puts millions of UK citizens into conflict with the law every time they visit a website or click on a link because the inevitable transient copies of webpages made in the process of browsing are not exempt from copyright by the temporary copies exception” [4].


The temporary copies exception essentially exempts certain incidental temporary copying that occurs as part of a technological process (such as when accessing a webpage) [5]. However, Managing Director of the NLA, David Pugh, has argued that the case “does not affect ordinary people using websites. It is about the commercial exploitation of newpaper content by commercial operators in ways which are not permitted by the wesites…” [5].


The PRCA and Meltwater have also taken action in the UK Copyright Tribunal regarding the overall fairness of the NLA’s licensing schemes and are still awaiting this decision.







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Canadian real estate case sets direction for online trading 29/11/2011

We have all become accustomed in recent years to searching for real estate online. A recent Canadian case between two companies in the real estate business raises some interesting issues about doing business online.


The plaintiff, Century 21, is a real estate franchise whose website allows searches according to various categories, including locality. The website was publicly accessible but Century 21 sought to restrict its use by competitors through certain terms of use. These terms gave a licence to use the website and its contents for personal use while requiring users to seek permission if they wanted to link to the Century 21 website. There was no “I accept” icon; the terms were simply displayed at the bottom of the website’s homepage.


The defendant, Zoocasta, also operates a real estate website with features including local area information and property listings. The Zoocasta site used robots (automated software programs) to scrape data (a form of indexing that looks for specific information on selected webpages with known layouts) from other sites to collate this information. There was evidence that the Zoocasta site indexed and linked to the Century 21 site, including reproductions of the full property listings.


The case proceeded on a number of grounds, including breach of contract, copyright infringement and trespass to chattels. The court’s findings in relation to contract, subsistence of copyright and fair dealing are particularly interesting.


1. Contract

The court examined the development of the law in relation to electronic contracts and concluded that Century 21’s terms of use constituted a binding contract between the parties. On the facts before it, the court found that Zoocasta had actual knowledge of the terms of use and that there had been a breach of contract.


This finding builds on the existing law in relation to “clickwrap” “shrinkwrap” and “browsewrap” agreements, and will give significant comfort to website operators seeking to manage use of their sites by third parties.


2. Subsistence of copyright

Recent case law has examined whether copyright can subsist in compilations such as medical records, telephone directories and television listings. In this case the court found that copyright did subsist in the individual property descriptions and photographs (although not in the general factual information on the website).


3. Fair Dealing

Canada, like Australia and the United Kingdom has a fair dealing exception which operates as a defence to copyright infringement. In this case, the defendant tried to argue that its use of the Century 21 property listings was a fair dealing and that they were therefore not liable for copyright infringement The court first examined whether the use fell into one of the fair dealing purposes (such as news reporting, research or study, criticism or review). Interestingly the court held that the fact that Zoocasta’s use was clearly commercial did not by itself take its use outside a fair dealing purpose. The court next examined whether the use was fair in all the circumstances. In doing so, it looked at the character of the dealing, the alternatives to the dealing, the amount of the dealing and the nature of the work and concluded that the dealing had not been fair. Hence Zoocasta was found to have infringed copyright in the property listings.


While fair dealing always requires a case-by-case analysis, the Supreme Court of British Columbia’s discussion in the Centruy 21 case will provide useful guidance on the parameters of fair dealing.


The decision is available here

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High Court to hear iiNet appeal case in December 17/10/2011

The High Court has allocated December 1 and 2 for film industry representative AFACT’s appeal of the Full Federal Court decision in Roadshow Films Pty Limited v iiNet Limited.


A coalition of film studios unsuccessfully sued internet service provider iiNet for infringement of copyright in the studios’ films In late 2008. AFACT then appealed to the Full Federal Court and while the appeal was dismissed, it was a mixed victory for iiNet as the Court did not preclude holding an ISP liable for authorsiation under different circumstances.


AFACT sought and secured special leave to appeal the case to the High Court – with the appeal now set for December 1 and 2. The appeal largely focuses around two issues:


(1) Whether the Full Federal Court erred in its application of the principles of authorisation and following this, whether the subsequent finding iiNet did not authorise its users’ copyright infringements is incorrect; and


(2) Whether the Full Court erred in its treatment of the “knowledge” aspect (i.e. how much iiNet needed to know before sufficient knowledge of the infringements could be demonstrated). AFACT’s notification procedure and iiNet’s responses to this will be of relevance here.


Click here for link to the High Court’s case information:


See the transcript of the High Court application for special leave at:

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Optus dispute with AFL, NRL and Telstra scheduled for December 28/09/2011

Australia will host its first lawsuit involving ‘cloud storage’ in the Federal Court on December 19 this year, with the AFL and NRL seeking a permanent ban on Optus copying, recording or replaying their games over its TV Now Service. [1]


The internet-based TV Now service allows users to record and store free-to-air TV programs on Optus’ computer servers (an example of cloud storage) and view them within 30 days using a web browser. However, Telstra recently agreed to pay in excess of $150 million for exclusive rights to stream the sporting events live on the internet and is concerned that TV Now will allow Optus customers to watch the games online with very little delay, thus de-valuing its exclusive rights.


Telstra, the AFL and the NRL are reportedly seeking unspecified damages from Optus, including the profits Optus has made from the service since it was launched in July this year. [2] Optus filed a pre-emptive strike – a claim for protection against infringement notices from the sporting bodies – in August, and the AFL, NRL and Telstra have now filed cross-claims.


Optus' defence is likely to centre on amendments to the Copyright Act introduced in 2006, which allow private individuals to record TV programs to watch at a later time without infringing copyright. The relevant argument will be that individual Optus consumers are doing the recording (through software downloaded to receive the TV Now service), not Optus, so that no infringement is occurring. The counter argument by the sporting bodies and Telstra is likely to be that the programs are being stored on Optus equipment and distributed by Optus for trade, thus cancelling out the personal use defence. The court’s decision is likely to set a precedent in Australian copyright law.


Not surprisingly, the legal parameters of cloud storage services are also being mapped out in Europe and the US. As reported in the Council’s August News Service, a US court handed down a split decision in a copyright case involving cloud storage service MP3Tunes and EMI Music Group on August 22. While the court ruled that MP3Tunes had infringed copyright in relation to certain specific works, it also found that for the most part, the service was protected by the US safe harbour rules of the Digital Millennium Copyright Act. In addition to relying on these safe harbor provisions for its defence, MP3Tunes also raised questions about whether the storage and streaming of files owned by users needed permission from rights holders in the first place.


A recent report in the US publication Politico [2] noted that content providers are currently lobbying Congress to make sure that web-based cloud storage isn’t used to facilitate illegal trade in copyright materials: “Content makers are careful to say they don’t want to encourage lawmakers to crack down on the cyberlocker technology, but they are focused on stopping infringing behaviour that occurs on file-sharing services…


“The issue has also caught the eye of the US Copyright Office, which both the Senate and House judiciary committee have consulted in crafting their anti-piracy bills. Maria Pallante, the head of the Copyright Office, acknowledges that tackling infringing cyberlockers presents ‘some really difficult questions’ when it comes to copyright law.” [3]


[1] Sydney Morning Herald at:

[2-3] Politico (21/9/11) at:

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Australian authors join copyright suit against American universities 13/09/2011

The Australian Society of Authors has joined the USA’s Authors Guild, the Quebec Union of Writers and a number of individual authors in filing suit against a partnership of research libraries and five universities which have digitised a large number of books without permission from the authors.


The complaint submitted in a US District Court claims that the universities obtained unauthorised scans from Google of an estimated seven million copyright-protected books: “By digitising, archiving, copying and now publishing the copyrighted works without the authorisation of those works’ rightsholders, the universities are engaged in one of the largest copyright infringements in history.” [1]


Individual authors involved in the suit include Australian author Angelo Loukakis, Fay Weldon and Shakespeare scholar James Shapiro. The universities named in the suit are the University of Michigan, University of California, University of Wisconson, Indiana University and Cornell University.


Rather than seeking damages, the plaintiffs are asking that the books be taken off the universities’ servers and held by a trustee.


For more details, click on the link below.


[1] New York Times at:

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