Online Enforcement of Copyright

The High Court has recently granted special leave to hear an appeal of the Roadshow Films v iiNet Ltd matter, the outcome of which has serious implications for owners of copyright and internet service providers.

Federal Court Decision

Roadshow Films Pty Ltd, along with  thirty-three other Australian and international film and media companies, (collectively called the ‘Australian Federation Against Copyright Theft’ AFACT) commenced an action in the Federal Court against iiNet, a popular Australian internet service provider. 

The claim alleged that iiNet authorised its customers to infringe the copyright of AFACT members, by allowing its customers access to BitTorrent peer-to-peer file sharing, where they downloaded television and films subject to AFACT members’ copyright.
The Federal Court held that while users had infringed AFACT members’ copyright, iiNet had simply provided internet services to its clients and had not authorised or provided a means for its users to infringe copyright.

AFACT appealed this decision to the Full Court of the Federal Court.

Full Court Decision

The AFACT infringement notices provided to iiNet were lacking in particularity and verifiable information, and as such, iiNet’s limited actions in addressing the notices were deemed satisfactory.  However, the Court made it clear that had the notices been more specific, iiNet would have needed to take reasonable steps to limit infringement by its users.

As iiNet had failed to implement a policy of termination of users’ accounts for repeated infringements, the limited liability and associated defences under the Copyright Act would not have been available to them.  It was only the failure of AFACT members’ notices that allowed iiNet to escape liability.

Online Enforcement

It now remains to be seen if the High Court will confirm the Federal Court’s interpretation of the infringement notices and application of the test for authorising infringement. 

This is a timely reminder to copyright holders that they are not powerless to stop infringements online.  While the party directly infringing the copyright should always be vigorously pursued, ISPs, social media companies (Facebook, Twitter etc.) and search engine providers (Google, Yahoo etc.) will need to act in relation to a conforming notice provided to them by a copyright holder, to ensure that all reasonable steps are taken to assist with stopping infringements taking place.

Chris Wilson