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Proposing an amendment of the Copyright Act 1968 in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd (see below), which found that ISPs are not liable for authorising the infringements of subscribers.

Sections 36(1) and 101(1) establish the exclusive right to ‘authorise’ the doing, in Australia, of any act comprised in the copyright. Whether an intermediary has ‘authorised’ an act of infringement is a question of fact assessed in all of the circumstances. ‘Authorise’ is defined as ‘sanction’, ‘approve’ or ‘countenance’ (UNSW v Moorhouse 1975 HCA 26), and assessed with specific regard to: (a) the extent (if any) of the person’s power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned (c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. (Sections 36(1A), 101(1A)). ‘Mere conduit’ exceptions exists in...

Trade Agreement Implementation Act 2004 (Cth) Sch 9 & Copyright Legislation Amendment Act 2004 (Cth) Sch 1 (Safe Harbours) Safe harbours for intermediaries were introduced as part of the Australia - United States Free Trade Agreement (Ch 17) by the US Free Trade Agreement Implementation Act 2004 (Cth) Sch 9 and amended by the Copyright Legislation Amendment Act 2004 (Cth) Sch 1. The safe harbours largely follow the structure of 17 USC 512, although they have been substantially redrafted. The safe harbours limit the liability for intermediaries to injunctive relief for transmission, caching, hosting, and indexing activities (Section 116AG). The conditions imposed on intermediaries seeking to rely on the safe harbours include a reasonably implemented termination policy for repeat infringers and a notice and takedown...

Website blocking scheme: Section 115A of the Copyright Act 1968 enables copyright owners to the Federal Court of Australia for an injunction requiring ISPs to disable access to online services hosted outside Australia. Before granting the injunction, the Court must be satisfied that the foreign site either directly infringes copyright or ‘facilitates’ infringement. Rightsholders bear the onus of showing that the ‘the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).’ The Court must take into consideration a range of factors including whether disabling access to the online location is a proportionate response in the circumstances, the impact on any person likely to be affected by the grant of the injunction, and whether it is in the...

The University of New South Wales was found liable for authorising the infringements of those who used the photocopiers it provided in its library. The case was brought as a test case, with plaintiffs alleging that UNSW was liable for making the photocopy machines available within its library without supervision and without appropriate notices about copyright rules. The High Court held that “authorise” in s 36(1) of the Copyright Act 1968 means “sanction, approve, countenance”. Two approaches to evaluating authorisation liability emerged from the case. Justice Gibbs stated the test which would later be codified in ss 36(1A) and 101(1A): “It seems to me... that a person who has under his control the means by which an infringement of copyright may be committed – such as a photocopying machine – and who makes it available...