Film and TV stu­dios appeal to High Court in iiNet copy­right case

In brief — Full Fed­er­al Court deci­sion on iiNet appealed to the High Court

The con­sor­tium of film and tele­vi­sion com­pa­nies has gone to the High Court to appeal the deci­sion that iiNet did not autho­rise copy­right infringe­ment via its inter­net service. 

Back­ground to iiNet case

As men­tioned in our pre­vi­ous arti­cle, Appeal dis­missed — Full Fed­er­al Court con­firms that iiNet is not liable for infringe­ments by its users, in his major­i­ty judg­ment in the Full Fed­er­al Court appeal in this mat­ter, His Hon­our Jus­tice Emmett com­ment­ed that even though the coali­tion of film and tele­vi­sion com­pa­nies which com­menced the pro­ceed­ing are not enti­tled to relief in this pro­ceed­ing, ​“it does not fol­low that that is an end of the matter”.

His Hon­our was right. The ques­tions raised in the pro­ceed­ings are ongo­ing as the con­sor­tium of film and tele­vi­sion com­pa­nies have now appealed the Full Fed­er­al Court deci­sion to the High Court. They seek to over­turn the rul­ing that iiNet did not autho­rise the acts of infringe­ment that it knew occurred on its inter­net service.

View of Aus­tralian Fed­er­a­tion Against Copy­right Theft (AFACT)

A media release on the iiNet case issued by AFACT stat­ed: ​“The Full Fed­er­al Court unan­i­mous­ly found that iiNet had the pow­er to pre­vent the infringe­ments of its users from occur­ring and that there were rea­son­able steps it could have tak­en, includ­ing issu­ing warn­ings”. The film com­pa­nies will argue that ​“iiNet did have suf­fi­cient knowl­edge, that it admit­ted the acts of infringe­ment and that its CEO admit­ted on the stand that the evi­dence was ​‘com­pelling’”.

We will have to wait and see the out­come of the spe­cial leave appli­ca­tion before we know if the court case has reached the end of the road. How­ev­er, that may still not be the end of the matter.

iiNet pro­pos­es a new frame­work for con­tent provision

In response to the pro­tract­ed court pro­ceed­ings in this mat­ter, iiNet has sug­gest­ed that ​“it’s time for the film and tele­vi­sion indus­try and copy­right hold­ers to work with the [inter­net] indus­try to make their con­tent legit­i­mate­ly avail­able”. More specif­i­cal­ly, in an indus­try paper released by iiNet last month, Encour­ag­ing legit­i­mate use of Online Con­tent — An iiNet view, iiNet has called for copy­right own­ers to make their con­tent more read­i­ly and cheap­ly avail­able online and for an inde­pen­dent body to be estab­lished to man­age alle­ga­tions of copy­right infringe­ment and to deter­mine any penalties.

In the intro­duc­tion to the paper, iiNet argues: ​“We believe the desire of rights hold­ers to police infringe­ments must also be matched by a con­comi­tant effort to improve access to legit­i­mate con­tent, includ­ing by the use of new busi­ness mod­els. iiNet does not sup­port or encour­age any breach­es of Aus­tralian law, includ­ing infringe­ment of the Copy­right Act.”

Inter­net Indus­try Asso­ci­a­tion response

Fol­low­ing the Full Fed­er­al Court appeal, the Inter­net Indus­try Asso­ci­a­tion (IIA) issued a state­ment on 11 March 2011, IIA Fas­tracks Indus­try Copy­right Code, announc­ing that it would imme­di­ate­ly start work­ing on an indus­try code of prac­tice for inter­net inter­me­di­aries, includ­ing ISPs, search, host­ing and social media providers.

IIA stat­ed: ​“Hav­ing close­ly reviewed the recent deci­sion of the Full Fed­er­al Court, we’ve con­clud­ed it’s both nec­es­sary and appro­pri­ate to devel­op a code of prac­tice to give a wider range of inter­net inter­me­di­aries greater cer­tain­ty around their legal rights and oblig­a­tions. The iiNet case has pro­vid­ed us with wel­come guid­ance on where respon­si­bil­i­ties should begin and end, but falls short in defin­ing rea­son­able steps inter­me­di­aries should take in respond­ing to alle­ga­tions of infringe­ment by their users. The Code will address this gap.”

We are con­tin­u­ing to fol­low this impor­tant issue and will pro­vide fur­ther updates as it progresses.

For fur­ther infor­ma­tion please con­tact Swaab Attorneys.