In late 2008 a consortium of 34 companies (including major film and television studios) commenced proceedings in the Federal Court of Australia against iiNet Limited (iiNet), an Australian internet service provider.
The proceedings claim that iiNet is liable for copyright infringements allegedly committed by iiNet's customers, in particular the downloading of unauthorised copies of film and television programs.
Under the Copyright Act 1968 (Cth) (CA) a person who authorises an infringement of copyright committed by a third party can be liable for that infringement. The film and television studios allege in their statement of claim that iiNet had authorised copyright infringements as:
- iiNet knew or had reason to suspect that its customers were committing copyright infringements; and
- iiNet failed to take adequate steps to prevent or avoid these infringements.
iiNet has filed a defence to the claims and the matter has been set down for a trial in October 2009.
Risks for technological service providers
The iiNet litigation provides an illustration of the risk that internet service providers, website operators and other technology service providers can be held to be liable for infringements of copyright committed by their customers.
Significantly, the CA contains 'safe harbour' provisions which limit the liability of carriage service providers, such as internet service providers, for copyright infringements committed by their customers. However, in order to obtain the protection conferred by these provisions, carriage service providers need to comply with a number of requirements set out in the CA and associated regulations.
Accordingly, internet service providers and other providers of technological services should consider:
- whether the services they provide could potentially be used by others to directly infringe copyright; and
- whether they are eligible for protection under the 'safe harbour' provisions of the CA.
The Hall & Wilcox
Intellectual Property and
Technology teams have extensive experience advising technology industry clients in relation to copyright issues.
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