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Thursday, July 31, 2014

Online Copyright Infringement — Discussion Paper

By James Gonczi, Lawyer

It has been well documented that Australia is fast becoming one of the world's hotspots for online copyright infringement. The Australian Financial Review has reported that the recent season finale of Game of Thrones was illegally downloaded almost one and a half million times by Australians in the 12 hours after the program aired in the USA. However, to borrow a line from that very popular program, it seems that 'Winter is coming' for illegal downloaders.

Late last week Australian news website Crikey.com published a leaked Australian Government discussion paper concerned with preventing online copyright infringement. The official paper was released by the Attorney General's department on 30 July 2014 in substantially the same form.

The discussion paper starts by outlining the reasons why all Australians should be concerned about online copyright infringement:
'According to a 2012 [PWC] report, Australia's copyright industries employ 900,000 people and generate economic value of more than $90 billion, including $7 billion in exports. Digitisation means that these industries are particularly susceptible to harm from online copyright infringement with the potential to directly impact on the Australian economy and Australian jobs.'
However, as the Government acknowledges, online copyright infringement 'is not an issue that is susceptible to easy solutions'.

The discussion paper is directed, at least in part, to addressing the decision of the High Court of Australia in Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 (our detailed analysis of that decision here). The High Court in iiNet essentially determined that iiNet was not responsible for its subscribers' acts of copyright infringement committed using its services. However, the Government's position is that ISPs can take some reasonable steps to prevent copyright infringement, even where that action falls short of actually preventing the infringing act.

To this end, the discussion paper outlines three proposals on which it is seeking input:
  1. extending 'authorisation liability';
  2. extending injunctive relief to block infringing overseas sites; and
  3. extending the 'safe harbour' currently afforded to carriage service providers to all online 'service providers'.
The Government is seeking stakeholder feedback on these proposals by 1 September 2014. Importantly, the proposed changes to 'authorisation liability' under section 101 of the Copyright Act 1968 (Cth) could have unintended consequences for businesses that operate both off and online. So, if copyright is relevant to your business, now is the time to stand up and be heard.

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