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Legislation

Intellectual Property Law N. 11.723

A number of the judicial decisions regarding intermediary responsibility are based on Intellectual Property Law 11.723. The following articles have been repetedly applied in decisions dealing with intermediary liability: ( 1 ) Article 9 : No one has the right to publish, without permission from the authors or copyright owners, a scientific, literary, artistic or musical production that has been noted or copied during the private or public reading, execution, or exposition. ( 2 ) Article 13 : All of the provisions of this law, except those of Article 57, are equally applicable to scientific, artistic and literary works, published in foreign countries, regardless of the author’s nationality, as long as these authors belong to nations that recognize the right to intellectual poperty. ( 3 ) Article 71 : Whoever defrauds...
Legislation

Trade Agreement Implementation Act 2004 (Cth) Sch 9 & Copyright Legislation Amendment Act 2004 (Cth) Sch 1 (Safe Harbours)

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...
Legislation

Copyright Amendment (Online Infringement) Act 2015 (Cth)

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...
Legislation

Copyright Act 1968 (Cth)

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...