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Australian
filesharing law
This page considers the status of filesharing under Australian
law.
It covers -
introduction
Peer to Peer as such (and other filesharing) is not
prohibited by Australian copyright law or other legislation,
discussed elsewhere on this
site.
However, the Copyright Act does prohibit breaches of the
exclusive rights of copyright owners. The availability
of content on the net does not necessarily mean that a
sound recording or other item is can be legally copied
onto a personal computer or other device in Australia
or provided to another entity through for example email
or P2P access.
the legislation
The legislation encompasses rights in published musical
works (eg scores), artistic works, sound recordings and
cinematographic films.
The owner of copyright in a musical work has the exclusive
right to -
- reproduce
the work in a material form
- publish
the work
- perform
the work in public
- communicate
the work to the public
-
make an adaptation of the work
The
owner of copyright in a sound recording has the exclusive
right to -
- make
a copy of the sound recording
-
cause the recording to be heard in public
-
communicate the recording to the public
-
enter into a commercial rental arrangement in respect
of the recording
The
owner of copyright in a cinematographic film (including
items on a DVD or videotape) has the exclusive right to
-
-
make a copy of the film
-
cause the film to be heard/seen in public
-
communicate the film to the public
Those
rights include both the exclusive right to authorise another
person to do any of the things listed above.
liability
Liability for copyright infringement through filesharing
can encompass organisations and individuals, including
students at an educational institution, people working
in a business and children/adults at home who are not
seeking to make financial gains through sale of the work
or advertising.
Liability can arise jointly: more than one person (and
indeed both an organisation and individual) can be held
liable for the same act of infringement.
In principle, anyone who uses P2P to make copyright online
music, film and other content available without authorisation
by the copyright owner is personally liable. That liability
is subject to a defence or exception, discussed below,
and does not disappear merely because unauthorised access
was undertaken at an organisation such as a university
or a business' hardware and connectivity.
As noted above, copyright owners broadly have exclusive
rights. An organisation can be found liable for authorising
the infringing conduct of employees/agents. Educational
institutions can be found liable for authorising infringing
conduct by students, where for example a university has
both provided access to equipment and connectivity used
in carrying out that conduct and not taken 'reasonable
steps' to prevent infringement. There is uncertainty about
specifics of what is reasonable and practical, although
emerging case law does provide some guidance for organisations
regarding authorisation liability.
Organisations may be vicariously liable where an employee/agent
infringes within the course of that individual's employment.
That liability may arise even though the employee acts
in a way contrary to directions by the organisation.
defences
Australian filesharers sometimes assume that they can
successfully use fair use or other defences/exceptions
under US copyright law. That assumption is incorrect.
Section 39B of the Act provides that a person who provides
facilities for making, or facilitating the making of,
a communication is not taken to have authorized any infringement
of copyright merely because another person uses the facilities
so provided to infringe copyright.
The stated intention of that provision was to "clarify"
the liability of carriers, carriage service providers
and others who provide such facilities. The clarification
has been criticised as doing no more than restate the
common law position regarding liability for authorisation
of copyright infringement.
The Act contains significant exceptions regarding 'fair
dealing', ie permit copying without permission by the
copyright owner in particular circumstances. Those exceptions
are limited and copying outside specific purposes identified
in the Act will not fall within the fair dealing exceptions.
They essentially relate to copying for the purpose of
research or study, criticism and review. There is no broad-brush
US-style general 'fair use' exception to copyright. There
is thus no inherent right under Australian copyright law
to make a backup copy of a CD or copy a sound recording
to a personal computer or device such as an iPod, although
personal copying of television broadcasts for the purpose
of 'timeshifting' is permitted.
Overall, fair dealing exceptions can generally not be
relied on in use of P2P networks to share copyright works.
The emphasis on 'making available' results in emphasis
on the entity doing the copying/communicating, rather
than the person accessing or receiving the work. The individual's
intention in making available a sound recording or other
content is also significant.
penalties
Penalties for infringement of copyright may be substantial.
Infringement of copyright is generally a civil rather
than criminal matter: although the Copyright Act provides
for criminal penalties, criminal actions in Australia
for copyright infringement have been less common than
civil actions.
The primary civil remedy is damages under section 115(2))
of the Act. Those damages are intended to compensate the
copyright owner for economic loss suffered through infringement
by the defendant. The scale of damages is dependent on
the facts of each case, although commonly it is the fee
that the copyright owner of might reasonably have charged
for the use which defendant made of the work and loss
of sales suffered by the owner. With music and film filesharing
the latter potentially involves damages of millions of
dollars.
Damages might not be awarded where a defendant was able
to demonstrate that the individual/organisation was not
aware (and had no reasonable grounds for suspecting) that
action was an infringement of copyright. That defence,
under section 115(3) is not a charter based on mere ignorance
of the law. The so-called 'innocence' provision might
be available where the defendant was of the mistaken but
reasonable belief that there was a license for the actions
that amounted to the infringement.
Courts can award additional damages where a defendant
has acted in flagrant disregard of the rights of the copyright
owner. That disregard would include deliberate and calculated
infringement after receipt of a 'cease and desist letter'.
It would also include instances where the defendant has
received substantial financial benefit from the infringement.
It has been held to include conversion of a work from
analogue to digital formats.
The Act provides that where -
a)
an infringement of copyright is established; and
b) the court is satisfied that it is proper to do so,
having regard to:
(i) the flagrancy of the infringement; and
(ia) the need to deter similar infringements of copyright;
and
(ib) the conduct of the defendant after the act constituting
the infringement or, if relevant, after the defendant
was informed that the defendant had allegedly infringed
the plaintiff's copyright; and
(ii) whether the infringement involved the conversion
of a work or other subject-matter from hardcopy or analog
form into a digital or other electronic machine-readable
form; and
(iii) any benefit shown to have accrued to the defendant
by reason of the infringement; and
(iv) all other relevant matters;
the
court may, in assessing damages for the infringement,
award such additional damages as it considers appropriate
in the circumstances.
Criminal penalties can apply when an individual/organisation
-
- sells
or lets for hire
- by
way of trade offers or exposes for sale or hire
-
imports into Australia for the purpose of distributing
for trade or any other purpose to an extent that will
affect prejudicially the owner of copyright
an
article that the person knows or ought reasonably to know
is an infringing copy of a work or other subject matter
in which copyright subsists (s 132). It is important to
recognise that criminal liability can arise without the
need for money to change hands.
The maximum penalty for an individual guilty of a criminal
offence is $60,500 or five years imprisonment in respect
of each infringing article. A corporation may be fined
up to $302,500 regarding each infringingement.
investigation and injunctions
Investigation of offences may involve examination and
seizure of personal and corporate machines.
In responding to infringements copyright owners may seek
civil remedies such as injunctions restraining a defendant
from continuing to engage in the infringing conduct. Defendants
may also be required to provide an account of profits,
often sought as an alternative to damages where the benefit
to the defendant exceeds any damage suffered by the plaintiff.
For infringements on a non-commercial basis the major
penalty may be the financial and emotional cost of litigation,
including seeking legal advice, appearing in court and
"explaining to mum or dad why the police want to
examine your bedroom" or why the organisation has
been hit with an Anton Piller Order.
cases
Salient Australian caselaw about filesharing includes
-
- 2003
in Sony Music Entertainment (Australia) Ltd v Uni
of Tasmania (2003)
- MP3
WMA Land
(2003)
-
Cooper, MP3s4free.net and Com-cen (2005)
Sony
v Uni of Tasmania
2003 Sony Music Entertainment (Australia) Ltd
v University of Tasmania - Federal Court decision
on discovery application by record companies against three
universities for alleged use of the universities' computer
networks for reproduction and communication of MP3 files,
infringing copyright in music and sound recordings. The
companies sought access to university records to identify
alleged infringers and to determine whether there are
grounds to seek relief for infringement. The universities
resisted on a number of grounds that included privacy.
The Federal Court agreed to grant the orders on certain
conditions, primarily regarding preservation of confidentiality
and privilege. | FCA 532 (30 May 2003)
MP3 WMA Land
Sydney
students Tommy Le, Peter Tran and Charles Ng pleaded guilty
after arrest in 2003 to supplying and distributing unlawful
copies of copyrighted music via the MP3 WMA Land site.
The Australian Federal Police alleged that the site resulted
in potential music industry losses in excess of $60 million,
with files on the site including several hundred commercially
available albums and individual recordings, covers and
music videos belonging to Universal Music, Sony, Warner,
BMG, EMI and Festival Mushroom Records.
Le, Ng and Trau were each sentenced to 18 months imprisonment,
suspended for three years on a $1,000 good behaviour bond.
Tran was fined $5,000. Ng, who lacked Tran's medical certificate,
was sentenced to 200 hours community service.
MP3s4free.net
In 2005 Stephen Cooper (MP3s4free.net) and Camperdown-based
ISP E-Talk Communications (trading as ComCen Internet
Services) were found guilty of copyright infringement
by the Federal Court, having breached Australian law by
creating hyperlinks to sites that had infringing sound
recordings. The ruling
by Justice Tamberlin in Universal Music Australia
Pty Ltd v Cooper that ComCen was liable through hosting
the MP3s4free.net website was the first decision of its
kind in Australia.
The recording industry accused the ISP of being "directly
involved in music piracy by allowing its infrastructure
to be used for file-trading activities". ComCen unsuccessfully
claimed it was not liable because it didn't host any MP3
recordings on their servers.
The court found that Cooper's mp3s4free.net hyperlinking
did not communicate the works to the public (independent
sites that he linked to were 'communicating' the works
to the public), did not 'electronically transmit' the
works to the public and did not 'make the works available
online'. However, Cooper infringed copyright by making
copies of sound recordings onto his hard drive, authorising
the infringements of people who downloaded sound recordings
using his hyperlinks, and authorising infringements done
by remote sites. Disclaimers on the site were insufficient
to provide a shield against copyright claims. The
court found that the respondents engaged in misleading
and deceptive conduct under section 52 of the Trade Practices
Act by making false claims about legitimacy of the MP3
files available through the site and the rights of consumers
to legally download the files.
The court ruled that Comcen, director Liam Francis Bal
and technical officer Chris Takoushis
could
have taken the step of taking down the website. Instead,
they took no steps to prevent the acts of infringement.
and
had financially benefited from advertising on the site.
Although ComCen did not host the files, the evidence indicated
that downloading could have "been switched off"
if the respondents had wanted to do so, eg by disabling
the hyperlinks. | FCA 972 (14 July 2005)
Universal Music Australia v Sharman License
Holdings
In September 2005 Justice Wilcox of the Federal Court
ruled
that Sharman Networks, the Australian company behind Kazaa,
had breached music copyright by authorising its users
to swap songs illegally and had exhorted users to "Join
the Revolution", encouraging "visitors to think
it 'cool' to defy the record companies by ignoring copyright
constraints".
Sharman was ordered to modify Kazaa so that users can
access only licensed music files and to pay most of the
legal costs. A spokesman for the 30 record companies that
sued Sharman indicated that they would seek damages.
Wilcox found that Sharman and Brilliant Digital Entertainment
had acted in "common design" and allowed Kazaa
users to infringe copyright.
The court indicated that a total stop to online music
piracy might not be possible and - given the importance
of "freedom of speech and communication" - was
anxious that any orders did not shut down legitimate file
sharing of "licensed music, photographs and recipes".
Sharman was ordered to fit Kazaa with one of two filter
technologies (one stopping users from sharing files that
match a list provided by record companies, the other showing
only licensed works) and to put "maximum pressure"
on current users to upgrade to the filtered version. |
FCA 1242 (5 September 2005)
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