'Authorisation' key to AFACT v iiNet High Court appeal

Stuart Corner
Thursday, 06 October 2011 15:08

IT Industry - Strategy

iiNet says High Court judges hearing the appeal in the copyright case it has been fighting against the movie studios will have to make a decision as to exactly what action, or non-action, by an ISP would constitute authorising its customers to download copyrighted material, and that this decision will bring much needed clarity to the industry.

Graham Phillips, a partner in law firm Herbert Geer who has been acting for iiNet throughout the case, said: "The case is primarily around the authorisation issue so that will be at the heart of it - whether or not iiNet is found to have authorised infringement by its users'¦This is the first time the High Court will have seriously looked at the authorisation issue since the Moorhouse case in 1975."

He explained that, because of the short time allowed for the hearing (two days) the focus of argument had to be much tighter than in the initial hearings. "The other issues that we have run as further lines of defence will be more on the fringes - the 'mere conduit defence', that iiNet is just a facilities provider and the privacy arguments in the Telecommunications Act'¦

"Both sides say they win based on an assessment of Moorhouse, but both sides arguments are poles apart which shows there is a lot of uncertainty in how to read what is the principal authorisation case. So it is important for the High Court to give some clarity on how you determine authorisation."

According to an article by Lionel Docker in the Media and Arts Law Review (2002) "In the Moorhouse case, the University of New South Wales (UNSW) had placed a number of photocopying machines in its library for the use of students. A copy of an anthology of short stories by Frank Moorhouse was copied and was used as the subject of a test case on authorisation. The High Court held that the conduct of UNSW in placing photocopying machines in its library for the use of students without any copyright warning notices or supervision constituted an invitation to students to infringe copyright."

The Copyright Act was subsequently amended to provide protection in relation to photocopiers installed in libraries or archives provided that a copyright notice is prominently displayed. The Digital Agenda Act extended that protection to computers installed in libraries or archives.

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