Recent Developments in Australian Copyright Law - iiNet, Telstra, Optus TV Now and PPCA

1. Background

   Four key decisions, three of which involve interpretations of the Copyright Act 1968, and one which looks into the Broadcasting Services Act 1992, show that the development of online and computerised content has raised some interesting questions about the future of copyright in online content, computer-created works, and the broadcast of television and radio online. In summary:

   The iiNet decision, now on appeal to the High Court, has clarified that ISPs are not responsible for authorising the illegal downloading of content, yet also suggests that they have a responsibility to ensure that their users are reprimanded for using their services for such purposes. The Telstra Phone Directories decision suggests that material generated by a computer does not attract copyright, which raises some noteworthy questions about the future of computer-created works. The Optus TV Now decision suggests that a service that mimics a VCR or DVR by allowing a user to download a broadcast onto a service provider's server, and then stream it onto a personal device, does not infringe copyright. The decision in PPCA implies that a licence to broadcast music over radio is also a licence to broadcast it online, as the dominant form of the service is still a broadcast service. 2. iiNet Decision

   (a) Decision at First Instance

   The Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 ("iiNet Decision") is a Federal Court decision that considered whether an internet service provider (ISP) is responsible for users who use their services to download copyright material. The iiNet Decision has now moved its way through to the High Court, where the first hearing commenced in December of last year.

   iiNet is the third largest ISP in Australia, and it became clear that some iiNet customers used the service to download copyright material, including films, using the BitTorrent system. The Australian Federation Against Copyright Theft ("AFACT") represented 34 applicants that owned copyright in a wide variety of films. Together they compiled evidence of a large number of their films having been downloaded illegally through iiNet, infringing their copyright.

   Although the iiNet Decision considered a number of key questions, the case was decided on only one: did iiNet 'authorise' the infringement of copyright in the applicant's films?

   Section 101 of the Copyright Act 1968 (the "Act") provides that a person who authorises an act of copyright infringement is held to have infringed copyright themselves. The Court looked at the BitTorrent system iiNet customers used to download films, and considered whether or not, through providing the internet services, iiNet had authorised copyright infringement. Despite finding that iiNet users had clearly infringed copyright, the Court found that there was no link between the customer's infringement and iiNet authorising such infringement, distinguishing the facts from the case of University of New South Wales v Moorhouse [1975] 133 CLR1 ("Moorhouse"), in which a university was held to have authorised copyright infringement by providing a photocopier in a library in order to let students copy pages from the books held in the library.

   It was clear that iiNet had general knowledge of copyright infringement that was committed by iiNet users, yet despite this, it did not stop customers from doing any of the infringing acts. However, this didn't matter, because the Court held that the 'means' by which the copyright was infringed was through an iiNet user's use of the BitTorrent system. Implicitly, this suggested that an ISP could not be held liable for copyright infringement because an ISP does not directly provide the 'means' through which copyright can be infringed.

   (b) Appeal to the Full Bench of the Federal Court

   AFACT appealed to the full Federal Court in Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23 ("iiNet Appeal"). The appeal found that the primary Judge's method of approaching the issue of authorisation was incorrect in implying that an ISP could not be found to authorise copyright infringement. The appeal Court found that authorisation was primarily determined by provisions under s101(1A) of the Act, where authorisation is based on:

   Power of iiNet to prevent infringement Nature of relationship between iiNet and the customer Reasonable steps iiNet took to prevent infringement The Court first considered whether it was relevant that iiNet had the power to stop the infringing behaviour by cutting off a user's internet service entirely. Despite the Judge in the first iiNet Decision finding that use of this power was unreasonable, given the "very broadness of the uses of the internet" [at 412], the full Court in the iiNet Appeal found that the power was not unreasonable. However, to use such a power, iiNet would need to be provided with sufficient evidence of the infringement by AFACT.

   Emmett J and Nicholas J held that there was no...