There’s little sign that the global copyright war will let up any time soon. Wherever you go, the content industries are working hard to secure stronger “protections” for intellectual property and tougher penalties against those who infringe against these protections. Given the forces they can bring to bear – an army of lobbyists and an ocean of cash – it’s not surprising that industry has won many of these battles.
Australia is one front in this war, and several notable skirmishes have occurred in recent times. The most significant has been a case in which the movie studios, represented by AFACT (the “Australian Federation Against Copyright Theft”) sued Australia’s third-largest ISP, iiNet, for authorising copyright infringement by allowing its users to download movies using BitTorrent.
Under Australian copyright law, a third party can be held accountable for a breach of copyright if they are found to have authorised the breach by “countenancing” it and providing the means to do so. This was tested in the courts in 1975 when a university was found liable for breaches of copyright because it provided a photocopier which students could use to make copies of books.
Bringing this suit against iiNet was a clear attempt to make ISPs liable for the content traversing their networks and is a probable first step on the road to introducing a graduated response mechanism to Australia. The ultimate outcome of the case will have enormous repercussions for the future of the industry and copyright law in Australia.
Fortunately, the signs have been positive so far. AFACT initially lost the case, with a heartening judgement by the trial judge, Justice Cowdroy, who even took AFACT to task for misleadingly using the word “theft” in their name. Justice Cowdroy found that the ISP had not authorised the infringement because they did not provide or operate BitTorrent; and even if they did, could fall back on the safe harbour provisions of the Copyright Act.
Unfortunately the content industry were not willing to let things be, and despite already losing one appeal so far are set to take the case to the High Court. Should iiNet eventually be found liable, it will precipitate a seismic shift in the way ISPs operate and could usher in an era of greater monitoring and punitive measures for alleged infringers. The industry are clearly hoping for a “three strikes” system. It’s unlikely this would affect industry revenues, but Australian internet users would surely suffer from this lack of due process.
One of the more ridiculous but high profile cases involves two well-known songs with Aussie themes. Larrikin Music vs EMI is a case in which, for once, a large music publisher is on the receiving end of an overreaching copyright claim. Larrikin is a small company that owns the copyright to a well-known folk song, “The Kookaburra Song”, which was composed in 1932 for a contest being held by the Victorian Guides. They claim that their song was plagiarised in the opening flute riff used in the 80’s classic, Men At Work’s “Down Under”.