Author: Tyler Fox, Bachelor of Laws/Diploma of Legal Practice Candidate, University of Newcastle, Australia

Topic
It is generally accepted that the internet has had a real impact on a variety of traditional creative industries. The internet provides a medium through which there is great potential for Australian users to infringe copyright in music and films and commit   classification offences such as selling or distributing unclassified films and computer games. How should the law respond to these challenges? 
You may choose to address either classification or copyright, or both, in your response. In your response you may like to examine any of the following issues:
  • Should the law control or guide the market and business practice?
  • Should internet service providers be held responsible for breaches of copyright and classification laws or should the law target the end-users directly?
  • What are the ways in which international jurisdictions have approached these problems.

Introduction

The law will always find it difficult to regulate new technologies, especially when a majority of the public does not see online copyright infringement to be a crime.[1] When consulting the industry groups affected by this widespread economic theft, any law created must consider that natural justice be afforded to this majority.[2] The Internet is borderless with no jurisdiction where it is almost impossible to truly isolate users from accessing technology that allows infringement.[3] Either the user or the Internet Service Provider (ISP) can be deemed responsible for the infringement. However, an illegal Internet downloading of a copyright work does not necessarily mean a lost sale for rights holder nor does it mean the infringement was not for the purpose of education as with book piracy.[4] Australia must protect the copyright originating in countries that have signed the Berne Convention and, in extreme cases, may extradite those who conspire to commit Internet piracy.[5] Enforcement faces many barriers when the technology allows a crime to occur across multiple jurisdictions.[6] Even when the copyright work is unclassified pornography, it still deserves protection. The role of experts in the P2P technologies that allow users to infringe copyright should be considered not just experts in the field of intellectual property law when forming a solution.[7] The private enforcement of copyright via the safe harbour will be compared with the difficulties of police enforcement. The creation of a specialist court and a private enforcement unit to prevent online copyright infringement will be examined as well as what role the Australian Communications and Media Authority (ACMA) could take in securing the proposed solution and strengthening the safe harbour..

Right of Universal Access to the Internet

Any law reform or proposed change should respect the universal right to Internet access recognised by the United Nations and the European Union.[8] The approaches applied are either the notice-and-takedown or what is termed a ‘graduated response’. ISPs, companies that facilitate access to the Internet, are given a notice that its users are infringing copyright with the request the account be terminated if infringements are repeated. This approach would have to extend to preventing access through other providers for it to be a truly effective measure. Due to a European Union E-Commerce Directive, the measures taken by EU member states must respect human rights and procedural fairness by restricting access when it is reasonable and appropriate in the circumstances.[9] The UK model allows appeals to a specialist tribunal to hear appeals where ISPs and rights holders must prove infringement where a graduated response against online copyright infringement is used.[10] The UK and France disconnect internet users who infringe copyright while the USA can seek civil orders that prevent users accessing the infringing website.[11] France views copyright infringement as a three-strike criminal offence where an administrative body is used to send notices with their access suspended for a year but cannot punish infringers themselves.[12] New Zealand favours a three-strikes policy that has lower penalties and an ability for rights holders to increase time between notices.[13] Both New Zealand and France have a reverse onus of proof where the alleged infringer must prove their innocence. Any punishment for copyright infringement, like a notice-and-takedown or blocking Internet access, would have to allow for procedural fairness and judicial review.[14] A judicial ruling is required to enforce fines against an infringer and to order the removal of an Internet connection.

Australia's Current Enforcement Mechanisms 

Private Enforcement 

ISPs v Internet Content Providers (ICPs)

Essentially, the Australian government can either regulate the ISP-user contractual relationship or wait for a market-based solution. ISPs operate almost globally but are often headquartered in foreign nations where jurisdiction makes civil actions by rights holders complicated to enforce requiring Australia’s solution to be internationally consistent.[15] ISPs must ensure they are not authorising their users’ copyright infringement by taking reasonable steps to stop their users.[16] The ISP is not authorising if they provide the facilities that allow copyright infringement when there are only mere assertions or allegations of copyright infringement of which they had no knowledge.[17]

ICPs are websites that provide the means of peer-to-peer file sharing (P2P), like Bit Torrent, are so proactively policed that authorisation of illegal downloading cannot be proven.[18] ICPs that do not police will often be seen as authorising infringement when they allow users to freely infringe using their software.[19] An ICP is liable in the US if they promote how their program infringes, no filter to prevent it was in place and the business model depends on the infringement.[20] In Australia, deliberately providing the facility to download still means the authorising ICP has the power to prevent it – control over the end-user is not even required.[21] While Australian courts allow rights holders to sue those who upload infringing material to the public across borders, information will have to be shared with international agencies to reduce uploaders who are situated in other jurisdictions.[22] 

Safe Harbour

Australia and the US share a similar safe harbour scheme to protect ISPs from liability due to the Australia-US Free Trade Agreement.[23] The notice-and-takedown system may not be procedurally fair if it does not allow a user to defend themselves and ISPs must always be searching out those who may be infringing copyright.[24] It may not be procedurally fair for the court to order ISPs to terminate accounts if users are not aware.

The copyright owners must send a notice to the ISP detailing their users’ activities so the access to infringing material can be removed or disabled, while the user has a chance to make a counter-notice.[25] When rights holders sue ISPs for authorising copyright infringement, ISPs will rely on safe harbour provisions.[26] The legislation categorises certain ISP activities and limits their liability depending upon their indirect involvement in the user’s infringement of copyright. The rights holder may still apply to have the Federal Court order an ISP to terminate a user’s account or their access to a specific online location if it provides facilities that allow copyright infringement.[27] Rights holders use a program that tracks the ISP’s infringing users and then send a notice to the ISP detailing the IP addresses of those who have infringed.[28] This can apply when the ISP caches the material, stores it at the direction of the user or referring users to an online location where this infringement can occur.[29] ISPs must adopt a system that terminates accounts of users who are “repeat infringers” of copyright to abide by safe harbour provisions to prevent civil action but they must give notice to users and allow them an opportunity to challenge.[30] The ISP is not obligated to monitor its service or to investigate its users for infringing activity.[31] The ISP must remove or disable access to copyright material on its system or network when it is given notice by a rights holder, court has declared it is infringing or is aware that the material is infringing or likely to be infringing.[32] However, there is a presumption that if the ISP presents evidence they have complied, they are not in breach of the safe harbour provisions.[33]

The ‘reasonable steps’ proposed by Justice Emmett in Roadshow v iiNet[34] should first be considered. These include when the ISP is given notice by the rights holders of allegations of particular forms of infringement, they inform their customer of the allegation and give them a chance to deny or stop their repetitive infringements, and the customer’s account is terminated following further infringements.[35] ISPs could give clear and accurate warnings to a customer that they are aware of facts giving rise to copyright infringement as a reasonable step before terminating their account, even when the warning to abide by their contractual terms of use would not actually prevent all customers from infringing copyright.[36] However, a user would have to be aware of the policy in the contract for procedural fairness or contractual agreement to have any force.[37] This requires more than mere assertions by the rights holder to ensure procedural fairness while the rights holder must reimburse the ISP for verifying their allegation and indemnify them for any liability arising from mistaken terminations of users’ accounts.[38] These notices – even when they contain credible supporting documentation of allegations of copyright infringement – may not need to be followed if they do not provide convincing evidence.[39] This position could invite ISPs to do nothing without overwhelming evidence even when they are aware and have the power to prevent copyright infringements.[40] Rights holders face an onerous burden in order to force the ISP to prevent their users’ copyright infringement.

The industry code inherent in the ISP safe harbour provisions does not currently exist.[41] If the government wants ISPs and rights owners together to create a code, its standards could be registered and enforced by ACMA under telecommunications legislation.[42] When the affected parties have presented no market-based solution there should be government intervention, especially when the code could not impose substantial costs on ISPs.[43] Accordingly, the safe harbour provisions must provide a mechanism to investigate and prosecute online copyright infringement.

Targeting users individually would be a proper remedy against copyright infringement. When rights holders take action against ISPs it may be too costly without properly fixing the economic and psychological harm caused by copyright infringement.[44] Unlike in the US, rights holders in Australia cannot have multi-million dollar punitive damages against infringing users.[45] ISPs blocking user accounts may be a proper remedy for rights holders provided they reimburse the ISP if any liability arises. Any action to block user accounts for copyright infringement could be enforced by courts wherever the user goes if the laws are consistent with Australia’s.[46] This method should be consistent with those found in other countries due to the international copyright conventions in place.[47] The remedy would be ineffective if the technology does not force cross-border blocking of accounts.[48]

Rights holders and their enforcement organisations are required to provide detailed and cogent evidence so the ISP is not in breach of its contractual obligation of confidence or telecommunications legislation when it terminates an account.[49] This allows the ISP to terminate the account even when the user would not consent to the ISP using the information to prove they have infringed copyright.[50] However, an ISP may still use notices by rights holders’ copyright societies as well as other forms of information to prevent further infringements.[51] A breach of this telecommunications law may occur if all other ISPs need to be informed when a user’s account is terminated.[52] For this to be remedied, a register of terminated users could be made available only to the ISPs to enforce copyright protection. 

Public Enforcement

The criminal law does not protect rights holders when illegal downloading occurs. Rights holders may not have a method of seeking a civil or criminal penalty against non-commercial illegal downloading under the Act.[53] The use of P2P file sharing to commit non-commercial copyright infringement may not be an offence against copyright law and one that the police would pursue.[54] Criminal enforcement of copyright on the Internet is not a high priority for the Australian Federal Police (AFP) due to the lack of perceived harm in the community, unlike investigating child pornography on the Internet.[55] The AFP has no power to prevent copyright infringement when they are informed of infringement after it has occurred.[56] Australia’s accession to European Convention on Cybercrime would force ISPs to hold users’ personal data.[57] Sentences for corporate defendants, like Internet cafes, are also fairly low even when they expressly allow copyright infringement on their premises.[58] To be effective, any proposed solution needs to be market-based and funded by ISPs and rights holders to address the AFP’s lack of resources and investigative powers. A new regulated private enforcement unit may need to be created with the resources to address the problem. 

Illegally downloaded pornography

Illegal downloads of unclassified content shows the Internet’s interference with state sovereignty. Rights holders may still protect their content and pursue damages when it has not yet been classified.[59] The mere possession of material that is X-rated or refused classification does not appear to be illegal.[60] Taking down unclassified online material requires the ACMA to give a takedown notice to the ISP for the content to be removed or to the AFP if material is illegal like child pornography.[61] The ACMA would probably not refer complaints if they were made to the AFP when the material is merely pornographic.[62] The AFP investigates when the file sharing or possession of the material is child pornography, material advocating terrorism or instructing suicide.[63] However, the ACMA cannot currently apply for a takedown notice merely to enforce copyright.[64]

Users still infringe copyright if the pornographic content offends community standards of what is moral and decent.[65] This consideration insulates the judiciary imposing their own moral views of what is obscene or pornographic on the material downloaded by users, especially when the content does not have to contain actual human beings.[66] The judge should not be making value judgments over whether the unclassified material appeals to public interests without any artistic merit.[67] Australia may thus safeguard its community values while respecting the cultural values of other nations.

Proposed Solution 

Creating a Specialist Court

Creating a specialist court to handle such crimes would require an expert judge and would need to be designed specifically to deter and prevent Internet copyright infringements.[68] When intention need not be proven to establish infringement,[69] the offence created would be absolute liability to regulate the behaviour that endangers the legitimate creative pursuits of rights holders.[70] However, to prosecute on such a grand scale would inundate Local Courts if it had to handle such cases summarily. Whether the charges are of criminal nature or merely breaches of contract, the defendant would need to know of the legal nature of offence as well as the particular acts alleged as the foundation of the charge.[71] Proper notices when issued would be needed to protect the privacy of users, especially when they may pay rather than challenge an embarrassing accusation of downloading pornography.[72] These notices would have a substantial effect in reducing copyright infringement.[73]

The specialist court must have the power to order the disabling of a user’s Internet account. A tribunal would not be preferable due to its lack of authority to determine questions of law or to make an order under statute.[74] The court would be established and its powers enshrined through Federal legislation. A court handling the appeals in this situation would need to be aware of the effect its power to limit, or criminalise, a person’s access to the Internet.[75] Making the forum a court is preferable when considering most appeals would be based on the use of botnets and other cybercrime to steal a user’s IP address or take control of the user’s computer to infringe copyright.[76] However, any extensive use of such criminal tactics would be targeted by the proposed Australian anti-cybercrime police powers to interact with ISPs to store suspicious communications.[77] Instead of copyright infringement, botnets and other malware are used to share child pornography or commit computer offences for commercial gain such as bank passwords.[78] This cybercrime would be investigated by the AFP and insulate these users from any wrongdoing if they were innocent agents of botnets and other malware.[79] Any proposed solution should be aware of ongoing technological developments that allow infringers to disguise their activities.

The question of who bears the burden is integral to court’s functioning, particularly if the alleged infringer wishes to appeal the decision.[80] European Union countries prefer a fair judicial ruling to be in place before Internet access is suspended.[81] A judicial body would be impartial and specifically deal with procedural and substantive issues associated with overriding contractual agreements and removing a human right to Internet access. If the ISP and the rights holder bear the burden of proof, the court may have a difficulty being convinced to the proper standard like with the UK system.[82] Reversing the onus of proof may be a more sufficient way of dealing with these offences considering the limited amount of evidence needed to substantiate the charge.[83] The reversal of the onus of proof is not unconstitutional in itself.[84] This would follow the New Zealand model where alleged infringers who challenge notices must disprove the particulars to avoid a fine or damages.[85] Under this model, rights holders must pay a $25 fee to ISPs so they send notices in a three-strikes approach before they can pay $200 to apply to the court to fine the user to a maximum of $15,000. Australia should use a graduated response model that would deter the community from copyright infringement and employ a court to enforce copyright and could encourage P2P software developers to make a product that prevents the illegal downloading of users.[86] 

Creation of a new Enforcement Unit 

Private Enforcement Unit?

Introducing an enforcement unit to investigate and prosecute copyright infringement to prosecute may be too costly. The choice is either establishing a unit or bestowing extra powers on ACMA when the AFP does not have the resources or interest in pursuing non-commercial online copyright infringement.[87] The fines imposed should go to the government to provide to ensure the enforcement unit is not corrupted. The enforcement unit would need to keep up-to-date when fighting those infringers who mask their IP addresses or hijack others to commit copyright infringement.[88] Individual users must be targeted when users download from each other not from a central server.[89] In France, the enforcement unit’s powers can only apply when alerted by prosecuting authorities or by the agents of rights holders.[90] A private enforcement unit in Australia could prosecute users after they have received notices but who choose to repeatedly infringe. These alleged infringers must be given to respond to ensure procedural fairness. 

Who will pay for it?

Rights holders may not want to have to reimburse ISPs for what they should be obliged to do. The ISP would undertake an expensive process and design sequence. The UK’s 75-25 funding split between rights holders and ISPs may not aid consumers if applied in Australia when the ISP charges their customers for the 25% expense they must bear.[91] The Australian Competition and Consumer Commission (ACCC) may make moves to prevent this becoming unfairly expensive for consumers.[92] However, the amount of capital needed to support such a private enforcement unit would be staggering if it is to police every Internet user in Australia.[93] A 75-25 split may be the way to decrease the notion that ISPs are indirectly being held vicarious liable.[94] The sheer expense will only benefit the wealthy rights holders but not the others who pay into the scheme.[95] The use of notices reduces potential prosecutions by the private enforcement unit while encouraging more sales to the rights holders subsidising the unit. ACMA may consult with ISPs and rights holders concerning how the enforcement unit would be funded if an industry code of practice is intended to be created. If not, legislation could impose this system through amendments to the safe harbour provisions.

Holding the Enforcement Unit accountable?

The ACMA currently enforces regulations regarding ISPs.[96] The ACMA does not have the power to acquire real or personal property or enter contracts, which may hinder adding any function allowing it to disable Internet access.[97] ACMA could determine an industry code of practice regarding the private enforcement unit if it goes outside its powers.[98] No civil proceedings could be launched against an ISP in respect of the industry code nor could ACMA prosecute only when a civil penalty provision has been breached.[99] When the Commonwealth is liable for any negligence in its control over ACMA,[100] the private enforcement unit would insulate the Commonwealth from liability and not interfere with a solution funded by the ISPs and rights holders. The industry code of practice would bolster the safe harbour provisions and make them fairer for ISPs and rights holders by focussing the liability on users. A code of practice would remove ISP liability to rights holder for their users’ copyright infringement which should be sufficient reason for its formation.[101] ACMA can investigate and request the ISP to answer questions regarding the private enforcement unit.[102] A code of practice would be easier to amend than legislation to include the evolution of new technologies allowing users to infringe copyright. ISPs can challenge the code on administrative grounds if they believe it is detrimental or if it imposes too much of a financial and systemic burden.[103] If an industry code of practice were created by ISPs and rights holders, the ACMA could be used to regulate the private enforcement unit.[104] The agreement between ISPs and rights holders could be enforced by code or as an enforceable undertaking but not contractually.[105] Amendments to the safe harbour legislation would allow the industry code of practice present in the existing provisions to have full effect and be enforced through ACMA-imposed penalties.[106] ACMA could continue its role monitoring ISPs by ensuring consumers are protected when the private enforcement unit acts improperly in its prosecutions. If no code of practice is agreed to by ISPs and rights holders, the Commonwealth will be forced to introduce this system through legislation or regulation. ACMA’s powers to direct ISPs could be increased by the Minister to regulate this situation if the need arises.[107] The discretion afforded allows courts to judge the behaviour of alleged infringers while providing a judicial ruling that would be fair and impartial. It also provides opportunity for rights holders to have a say over how fines and punishment should be executed. This system will reduce copyright infringement when the ISPs are indemnified from liability and rights holders can seek a court to fine or disconnect repeat infringers.

Conclusion

Access to the Internet may be a human right that needs a judicial ruling to remove. To prevent widespread online non-commercial copyright theft in a jurisdiction where the police do not have the powers or resources will require the creation of a specialist court and a private enforcement unit. The creation of a court can be achieved by legislation and the enforcement unit by forming an industry code of practice already placed in the safe harbour provisions. Extending its application and amending the safe harbour legislation to correspond with the proposed solution would deter online copyright infringement. Paying for the enforcement unit means the parties most concerned – ISPs and rights holders – agree to provide for this system and be bound by it. If they do not, legislation must be enacted. The specialist court would also provide procedural fairness to the alleged infringer. A graduated response to prevent online non-commercial copyright infringement should be employed where a notice, fine and court-sanctioned disconnection are the penalties. A reverse onus of proof would make this court efficient provided that the alleged infringer is given a proper notice detailing their offence(s) and given opportunity to respond to the charge. Even if the work infringed is pornographic and yet to be classified, it still bears the same protection as normal copyright works. ACMA could regulate and prosecute the private enforcement unit to prevent it breaching its own operating procedures and telecommunications law. Intellectual property laws are obsolete without a solution that can adequately deal with enforcing copyright over the Internet.

Bibliography 

Articles/Books/Reports

Austin, Graeme W, ‘Kazaa and Grokster across borders’ (2006) 11 Media and Arts Law Review 355

Australian Institute of Criminology, ‘Intellectual Property Crime and Enforcement in Australia’ (2008) Research and Public Policy Series 94

Chapman, Chris, ‘The Legal Challenges Facing ACMA as regulator’ (2007) 30(1) University of New South Wales Law Journal 220

Cheung. S Y, ‘The Regulation of Chinese Women’s sexuality on the internet’ (2007) 12 Media and Arts Law Review 107

de Silva, Sam and Weedon, Faye, ‘The Digital Economy Act 2010: past, present, and a future “in limbo”’ (2011) 17(3) Computer and Telecommunications Law Review 55

Dreyfuss, R C and Ginsburg, J C, ‘Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters’ (2002) 77 Chicago-Kent Law Review 1065

Ginsburg, Jane C and Ricketson, Sam, ‘Separating Sony sheep from Grokster (and Kazaa) goats: Reckoning future business plans of copyright-dependent technology entrepreneurs’ (2008) 19 Australian Intellectual Property Journal 10

Griffith, Gareth and Roth, Lenny, ‘Protecting Children from Online Sexual Predators’ (2007) 10 NSW Parliamentary Library Research Service Briefing Paper 1

Jarratt, Lisa, ‘The use of P2P technology for piracy of film and television content in Australia’ (2008) 74 Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand 49

Joint Select Committee on Cyber-Safety, Parliament of the Commonwealth of Australia, Review of the Cybercrime Legislation Amendment Bill 2011 (2011)

Kearns, Paul, The Legal Concept of Art (Hart Publishing, 1st ed, 1998)

Kirby, Michael, ‘New Frontier: Regulating Technology by law and “Code”’ (2007) 18 Australian Intellectual Property Journal 230

Kirby, Michael, ‘Ten Successful Requirements for Successful Law Reform’ (2009) 11 Flinders Journal of Law Reform 77

La Rue, Frank, Special Rapporteur, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN GAOR, Agenda Item 3, UN Doc A/HRC/17/27 (18 May 2011)

Legal and Constitutional Affairs Reference Committee, Parliament of the Commonwealth of Australia, Review of the National Classification Scheme: achieving the right balance (2011)

Moses, Lyria Bennett, ‘Creating Parallels to the Regulation of Content: Moving from Offline to Online’ (2010) 33(2) University of New South Wales Law Journal 581

Maurushat, Alana, ‘Australia’s Accession to the Cybercrime Convention: is the Convention relevant in combating cybercrime in the era of botnets and obfuscation crime tools?’ (2010) 16(1) University of New South Wales Law Journal Forum 5

Phillips, Jeremy, “’Three Strikes...and then?’ (2009) 4(8) Journal of Intellectual Property Law and Practice 521

Potin, Frederique, Daly, Maureen, Yeol, Jeong, Fogarty, Simon, Petersen, Joe and Pequignot, Andrew, ‘How three strikes is working’ (2011) 209 Managing Intellectual Property 78

Rizzuto, Francesco, ‘European Union telecommunications law reform and combating online non-commercial infringements of copyright: seeing through the legal fog’ (2011) 17(3) Computer and Telecommunications Law Review 75

Stinson, Emmett, ‘The pirate code (Illegal book downloading sites on the internet)’ (2010) 199 Overland 63

Wan, Charn Wing, ‘Three Strikes Law: A least cost solution to rampant online piracy’ (2010) 5(4) Journal of Intellectual Property Law and Practice 232

Warner, Kate, ‘Sentencing for child pornography’ (2010) 84 Australian Law Journal 384

Weatherall, Kimberlee, ‘Can substantive law harmonisation and technology fix conflicts problems?’ (2006) 11 Media and Arts Law Review 393

Vitins, Matt and Wiseman, Andrew, “’The means, baby’: ISP responsibility for copyright infringement and the need for an industry code of practice” (2010) 81 Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand 13

Case Law

Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575

He Kaw Teh v The Queen (1984) 157 CLR 523

IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458

Interville Technology Pty Ltd (ACN 099 833 619) v Director of Public Prosecutions (Cth) (2009) 81 IPR 115

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

McEwen v Simmons (2008) 73 NSWLR 10

Media CAT Pty Ltd v Adams &Ors [2011] EWPCC 6 (8 February 2011)

MGM Studios Inc. v Grokster Ltd (2005) 545 US 913

Morrison v Chevalley [2010] NSWIRComm 116 (24 August 2010)

Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399

Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1

TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) (2005) 145 FCR 35

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1

Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 70 IPR 517

Viacom International Inc v Youtube Inc 718 F.Supp.2d 514 (23 June 2010)

Legislation

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Communications and Media Authority Act 2005 (Cth)

Broadcasting Services Act 1992 (Cth)

Classification (Publications, Films, Computer Games) Act 1995 (Cth)

Commonwealth Authorities and Companies Act 1997 (Cth)

Copyright Act 1968 (Cth)

Copyright (Infringing File Sharing) Amendment Act 2011 (NZ)

Copyright Regulations 1969 (Cth)

Criminal Code Act 1995 (Cth)

Communications Act 2003 (UK)

Competition and Consumer Act 2010 (Cth)

Digital Economy Act 2010 (UK)

Judiciary Act 1903 (Cth)

Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act 2011 (US)

Telecommunications Act 1997 (Cth)

 


[1] See Michael Kirby, ‘New Frontier: Regulating Technology by law and “Code”’ (2007) 18 Australian Intellectual Property Journal 230, 240-241; Australian Institute of Criminology, ‘Intellectual Property Crime and Enforcement in Australia’ (2008) Research and Public Policy Series 94, 3-4.

[2] See Michael Kirby, ‘Ten Successful Requirements for Successful Law Reform’ (2009) 11 Flinders Journal of Law Reform 77, 83, 87, 95.

[3] See Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 616-618 (Kirby J).

[4] See Emmett Stinson, ‘The pirate code (Illegal book downloading sites on the internet)’ (2010) 199 Overland 63, 64-67; Australian Institute of Criminology, ‘Intellectual Property Crime and Enforcement in Australia’ (2008) Research and Public Policy Series 94, 69-71.

[5] See Copyright Act 1968 (Cth) ss 184, 248U-248V; Griffiths v United States of America (2005) 143 FCR 182, 190-191 (Whitlam, Finn and Conti JJ); Alana Maurushat, ‘Australia’s Accession to the Cybercrime Convention: is the Convention relevant in combating cybercrime in the era of botnets and obfuscation crime tools?’ (2010) 16(1) University of New South Wales Law Journal Forum 5, 19-20.

[6] See Michael Kirby, ‘New Frontier: Regulating Technology by law and “Code”’ (2007) 18 Australian Intellectual Property Journal 230, 240.

[7]Ibid, 235.

[8] See Frank La Rue, Special Rapporteur, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN GAOR, Agenda Item 3, UN Doc A/HRC/17/27 (18 May 2011), 8; Francesco Rizzuto, ‘European Union telecommunications law reform and combating online non-commercial infringements of copyright: seeing through the legal fog’ (2011) 17(3) Computer and Telecommunications Law Review 75, 77-83.

[9] See Francesco Rizzuto, ‘European Union telecommunications law reform and combating online non-commercial infringements of copyright: seeing through the legal fog’ (2011) 17(3) Computer and Telecommunications Law Review 75, 76.

[10] See Sam de Silva and Faye Weedon, ‘The Digital Economy Act 2010: past, present, and a future “in limbo”’ (2011) 17(3) Computer and Telecommunications Law Review 55, 57.

[11] See Communications Act 2003 (UK) ss 124-124F; Digital Economy Act 2010 (UK) ss 3-8; Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act 2011 (US).

[12] See Frederique Potin, Maureen Daly, JeongYeol, Simon Fogarty, Joe Petersen, Andrew Pequignot, ‘How three strikes is working’ (2011) 209 Managing Intellectual Property 78; Jeremy Phillips, “’Three Strikes...and then?’ (2009) 4(8) Journal of Intellectual Property Law and Practice 521; Charn Wing Wan, ‘Three Strikes Law: A least cost solution to rampant online piracy’ (2010) 5(4) Journal of Intellectual Property Law and Practice 232, 240.

[13] See Frederique Potin, Maureen Daly, Jeong Yeol, Simon Fogarty, Joe Petersen, Andrew Pequignot, ‘How three strikes is working’ (2011) 209 Managing Intellectual Property 78.

[14]See Frank La Rue, Special Rapporteur, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN GAOR, Agenda Item 3, UN Doc A/HRC/17/27 (18 May 2011), 12-13; Francesco Rizzuto, ‘European Union telecommunications law reform and combating online non-commercial infringements of copyright: seeing through the legal fog’ (2011) 17(3) Computer and Telecommunications Law Review 75, 81-82.

[15] See Kimberlee Weatherall, ‘Can substantive law harmonisation and technology fix conflicts problems?’ (2006) 11 Media and Arts Law Review 393, 394-395.

[16] See Copyright Act 1968 (Cth) s 101(1A)(c).

[17] See Copyright Act 1968 (Cth) s 112E; Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [212]-[228] (Emmett J).

[18] See Lisa Jarratt, ‘The use of P2P technology for piracy of film and television content in Australia’ (2008) 74 Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand 49, 51, 57-58.

[19] See Jane C Ginsburg and Sam Ricketson, ‘Separating Sony sheep from Grokster (and Kazaa) goats: Reckoning future business plans of copyright-dependent technology entrepreneurs’ (2008) 19 Australian Intellectual Property Journal 10, 11.

[20] See MGM Studios Inc. v Grokster Ltd (2005) 545 US 913; Viacom International Inc v Youtube Inc 718 F.Supp.2d 514 (23 June 2010); Jane C Ginsburg and Sam Ricketson, ‘Separating Sony sheep from Grokster (and Kazaa) goats: Reckoning future business plans of copyright-dependent technology entrepreneurs’ (2008) 19 Australian Intellectual Property Journal 10, 40.

[21] See Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380, [41] (Branson J); Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1, 88-89.

[22] See Graeme W Austin, ‘Kazaa and Grokster across borders’ (2006) 11 Media and Arts Law Review 355, 356-360.

[23] See Jane C Ginsburg and Sam Ricketson, ‘Separating Sony sheep from Grokster (and Kazaa) goats: Reckoning future business plans of copyright-dependent technology entrepreneurs’ (2008) 19 Australian Intellectual Property Journal 10, 29-41.

[24] See Frank La Rue, Special Rapporteur, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN GAOR, Agenda Item 3, UN Doc A/HRC/17/27 (18 May 2011), 12.

[25] See Copyright Regulations 1969 (Cth) regs 20E-20I, 20K, 20Q, 20T; Sch 10.

[26] See Copyright Act 1968 (Cth) s 116AA-116AJ.

[27] See Copyright Act 1968 (Cth) s 116AG.

[28] See Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [297]-[315] (Jagot J).

[29] See Copyright Act 1968 (Cth) s 116AG.

[30] See Copyright Act 1968 (Cth) s 116AH-116AI; Copyright Regulations 1969 (Cth) regs 20P-20R.

[31] See Copyright Act 1968 (Cth) s 116AH.

[32] See Copyright Act 1968 (Cth) s 116AH.

[33] See Copyright Act 1968 (Cth) s 116AI; Jane C Ginsburg and Sam Ricketson, ‘Separating Sony sheep from Grokster (and Kazaa) goats: Reckoning future business plans of copyright-dependent technology entrepreneurs’ (2008) 19 Australian Intellectual Property Journal 10, 34-35.

[34] See Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1.

[35] Ibid, [210], [257] (Emmett J).

[36] See Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [188] (Emmett J).

[37] Ibid, [271]-[272] (Emmett J).

[38] Ibid.

[39] See Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [399]-[427] (Jagot J).

[40] Ibid, [431]-[451] (Jagot J).

[41] See Copyright Act 1968 (Cth) ss 116AB, 116AH; Telecommunications Act 1997 (Cth) Pt VI; Copyright Regulations 1969 (Cth) reg 20B.

[42] See Matt Vitins and Andrew Wiseman, “’The means, baby’: ISP responsibility for copyright infringement and the need for an industry code of practice” (2010) 81 Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and New Zealand 13, 17-18.

[43] See Copyright Regulations 1969 (Cth) reg 20B.

[44] See Jane C Ginsburg and Sam Ricketson, ‘Separating Sony sheep from Grokster (and Kazaa) goats: Reckoning future business plans of copyright-dependent technology entrepreneurs’ (2008) 19 Australian Intellectual Property Journal 10, 41.

[45] See Kimberlee Weatherall, ‘Politics, Compromise, Text and the Failures of the Anti-Counterfeiting Trade Agreement’ (2011) 33 Sydney Law Review 229, 255-259.

[46] See Griffiths v United States of America (2005) 143 FCR 182, 190-191 (Whitlam, Finn and Conti JJ); Kimberlee Weatherall, ‘Can substantive law harmonisation and technology fix conflicts problems?’ (2006) 11 Media and Arts Law Review 393, 397.

[47] See R C Dreyfuss and J C Ginsburg, ‘Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters’ (2002) 77 Chicago-Kent Law Review 1065, 1066–1067.

[48] See Kimberlee Weatherall, ‘Can substantive law harmonisation and technology fix conflicts problems?’ (2006) 11 Media and Arts Law Review 393, 414.

[49]See Telecommunications Act 1997 (Cth) s 276; Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [229]-[235] (Emmett J).

[50] See Telecommunications Act 1997 (Cth) ss 289-290; Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [251], [254] (Emmett J).

[51]See Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [255] (Emmett J).

[52]See Telecommunications Act 1997 (Cth) s 279; Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [236]-[241] (Emmett J).

[53] See Copyright Act 1968 (Cth) ss 132AD-132AM.

[54] See Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1, [447] (Jagot J).

[55] See Australian Institute of Criminology, ‘Intellectual Property Crime and Enforcement in Australia’ (2008) Research and Public Policy Series 94, 65-66.

[56] Ibid, 58.

[57]See Joint Select Committee on Cyber-Safety, Parliament of the Commonwealth of Australia, Review of the Cybercrime Legislation Amendment Bill 2011 (2011) [2.7]-[2.8].

[58] See Interville Technology Pty Ltd (ACN 099 833 619) v Director of Public Prosecutions (Cth) (2009) 81 IPR 115.

[59] See Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 70 IPR 517.

[60] Ibid, 543 (French and Kiefel JJ).

[61] See Broadcasting Services Act 1992 (Cth) Sch 5, 7; Lyria Bennett Moses, ‘Creating Parallels to the Regulation of Content: Moving from Offline to Online’ (2010) 33(2) University of New South Wales Law Journal 581, 589-591; Legal and Constitutional Affairs Reference Committee, Parliament of the Commonwealth of Australia, Review of the National Classification Scheme: achieving the right balance (2011) [8.16]-[8.21].

[62] See Broadcasting Services Act 1992 (Cth) Sch 5, cls 40-41, Sch 7, Div 2.

[63] See Criminal Code Act 1995 (Cth) Sch 1, Div 474.19-474.24; Part 5.3; Legal and Constitutional Affairs Reference Committee, Parliament of the Commonwealth of Australia, Review of the National Classification Scheme: achieving the right balance (2011) [8.38]-[8.47].

[64]See Broadcasting Services Act 1992 (Cth) Sch 5, cls 63-66, 68-73.

[65] See Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 70 IPR 517, 536-539 (French and Kiefel JJ), 551 (Finkelstein J).

[66] Ibid, 553-554 (Finkelstein J); McEwen v Simmons (2008) 73 NSWLR 10, 12-13 (Adams J); Kate Warner, ‘Sentencing for child pornography’ (2010) 84 Australian Law Journal 384, 387-388; Gareth Griffith and Lenny Roth ,‘Protecting Children from Online Sexual Predators’ (2007) 10 NSW Parliamentary Library Research Service BriefingPaper 1, 34.

[67] See Anne S Y Cheung, ‘The Regulation of Chinese Women’s sexuality on the internet’ (2007) 12 Media and Arts Law Review 107, 113; Paul Kearns, The Legal Concept of Art (Hart Publishing, 1st ed, 1998) 35-39.

[68] See Australian Institute of Criminology, ‘Intellectual Property Crime and Enforcement in Australia’ (2008) Research and Public Policy Series 94, 73.

[69] See Copyright Act 1968 (Cth) s 14; IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458, 474-479 (French CJ, Crennan and Kiefel JJ); Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399, 418 (Sackville J);TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) (2005) 145 FCR 35, 53 (Hely J).

[70] See He Kaw Teh v The Queen (1984) 157 CLR 523, 533 (Gibbs CJ), 590-591, 595 (Dawson J).

[71] See Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 557-558 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Roadshow Films Pty Ltd v iiNet Ltd (2011) 89 IPR 1.

[72]See Media CAT Pty Ltd v Adams &Ors [2011] EWPCC 6 (8 February 2011) [17]-[31] (Birss J).

[73] See Sam de Silva and Faye Weedon, ‘The Digital Economy Act 2010: past, present, and a future “in limbo”’ (2011) 17(3) Computer and Telecommunications Law Review 55, 59-60.

[74] See Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 572-573 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[75] See KimberleeWeatherall, ‘Can substantive law harmonisation and technology fix conflicts problems?’ (2006) 11 Media and Arts Law Review 393, 417; Francesco Rizzuto, ‘European Union telecommunications law reform and combating online non-commercial infringements of copyright: seeing through the legal fog’ (2011) 17(3) Computer and Telecommunications Law Review 75, 91-92.

[76] See Alana Maurushat, ‘Australia’s Accession to the Cybercrime Convention: is the Convention relevant in combating cybercrime in the era of botnets and obfuscation crime tools?’ (2010) 16(1) University of New South Wales Law Journal Forum 5, 10-18

[77]See Joint Select Committee on Cyber-Safety, Parliament of the Commonwealth of Australia, Review of the Cybercrime Legislation Amendment Bill 2011 (2011) [9.1]-[9.2].

[78] See Alana Maurushat, ‘Australia’s Accession to the Cybercrime Convention: is the Convention relevant in combating cybercrime in the era of botnets and obfuscation crime tools?’ (2010) 16(1) University of New South Wales Law Journal Forum 5, 6-10.

[79] See Criminal Code Act 1995 (Cth) Sch 1, div 478.3-487.4.

[80] See Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 578 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[81] See Francesco Rizzuto, ‘European Union telecommunications law reform and combating online non-commercial infringements of copyright: seeing through the legal fog’ (2011) 17(3) Computer and Telecommunications Law Review 75, 77.

[82] See Sam de Silva and Faye Weedon, ‘The Digital Economy Act 2010: past, present, and a future “in limbo”’ (2011) 17(3) Computer and Telecommunications Law Review 55, 59.

[83] See Vitins and Wiseman, above n 42, 18.

[84] See Morrison v Chevalley [2010] NSWIRComm 116 (24 August 2010) [209].

[85] See Copyright (Infringing File Sharing) Amendment Act 2011 (NZ).

[86] See Charn Wing Wan, ‘Three Strikes Law: A least cost solution to rampant online piracy’ (2010) 5(4) Journal of Intellectual Property Law and Practice 232, 239.

[87] See Francesco Rizzuto, ‘European Union telecommunications law reform and combating online non-commercial infringements of copyright: seeing through the legal fog’ (2011) 17(3) Computer and Telecommunications Law Review 75, 86.

[88] See Sam de Silva and Faye Weedon, ‘The Digital Economy Act 2010: past, present, and a future “in limbo”’ (2011) 17(3) Computer and Telecommunications Law Review 55, 59-60.

[89] Ibid, 50-52.

[90] See Frederique Potin, Maureen Daly, Jeong Yeol, Simon Fogarty, Joe Petersen, Andrew Pequignot, ‘How three strikes is working’ (2011) 209 Managing Intellectual Property 78.

[91] See Sam de Silva and Faye Weedon, ‘The Digital Economy Act 2010: past, present, and a future “in limbo”’ (2011) 17(3) Computer and Telecommunications Law Review 55, 57.

[92] See Competition and Consumer Act 2010 (Cth) Pt IV-IVB; Telecommunications Act 1997 (Cth) Pt 25, div 3, s 517.

[93] See Charn Wing Wan, ‘Three Strikes Law: A least cost solution to rampant online piracy’ (2010) 5(4) Journal of Intellectual Property Law and Practice 232, 234.

[94] See Sam de Silva and Faye Weedon, ‘The Digital Economy Act 2010: past, present, and a future “in limbo”’ (2011) 17(3) Computer and Telecommunications Law Review 55, 60.

[95] Ibid.

[96] See Australian Communications and Media Authority Act 2005 (Cth) Pt 2.

[97] See Australian Communications and Media Authority Act 2005 (Cth) Pt 2 div 3.

[98] See Telecommunications Act 1997 (Cth) ss 118, 123-132.

[99] See Telecommunications Act 1997 (Cth) s 137.

[100] See Australian Communications and Media Authority Act 2005 (Cth) s 14(1); Commonwealth Authorities and Companies Act 1997 (Cth) s 28; Telecommunications Act 1997 (Cth) ss 580-581.

[101] See Vitins and Wiseman, above n 42, 6-7.

[102] See Telecommunications Act 1997 (Cth) ss 521-522.

[103] See Australian Communications and Media Authority Act 2005 (Cth) Pt 2; Copyright Regulations 1969 (Cth) reg 20B; Telecommunications Act 1997 (Cth) Pt 29, Sch 4; Chris Chapman, ‘The Legal Challenges Facing ACMA as regulator’ (2007) 30(1) University of New South Wales Law Journal 220, 223-224.

[104] See Australian Communications and Media Authority Act 2005 (Cth) ss 3-4, 8; Telecommunications Act 1997 (Cth) Pt 26.

[105] See Telecommunications Act 1997 (Cth) ss 572A-572C.

[106] See Vitins and Wiseman, above n 42, 6-7.

[107] See Australian Communications and Media Authority Act 2005 (Cth) ss 14-15; Commonwealth Authorities and Companies Act 1997 (Cth) s 28; Telecommunications Act 1997 (Cth) ss 580-581.

Published on 6 October 2011.