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Thursday, 10 June 2010 16:11

Bad news for Universities if iiNet copyright ruling overturned

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The chairman of the Internet Industry Assocation, Peter Coroneos, has told the CIOs of many of Australia's universities that, should the movie studios succeed in their appeal against iiNet over copyright infringement, the universities would have almost no protection against damages claims brought against them for use of their networks for the unauthorised downloading or storage of copyright content.

The problem centres on the 'safe harbour' provisions of the Copyright Act. Had the court found iiNet to have authorised breach of copyright by providing the means by which that infringement took place, iiNet, as an ISP would have been able to fall back on these provisions to avoid having to pay damages. This protection is not available to universities.

Coroneos presented at AARNet's Ozeconference, a regular videoconference held to encourage the use of video technology by showcasing equipment and applications, and discussing a broad range of ICT, network, applications and service issues.

Coroneos told ExchangeDaily after the event "Universities are not covered by safe harbour protection in Australia because when the Free Trade Agreement was signed with the US there was a major oversight. The equivalent legislation in the US talks about 'online service providers' having safe harbour protection and that was been interpreted to mean search services, content platforms, ISPs telcos and universities.

"In Australia the language [used in the legislation] morphed into 'carriage service providers' as defined by the Telecoms Act, which covers only telcos and ISPs."

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Coroneos said that, if the iiNet decision was overturned on appeal a University could be found to have authorised copyright infringement by controlling the means of infringement and doing nothing to prevent it. "They would be as liable as the person doing the infringement," and liable for damages.

He added: "The same analysis applies to social media platforms like Facebook, Myspace and Google Buzz. In the US they would also be covered by the safe harbour provisions, in Australia they would not'¦. A lot of people think we have had copyright reform in Australia but this is an issue that has slipped through."

In his presentation, Coroneos said he had "reminded the universities that they need to get their lobbying shoes on, because unless the government changes this law it will leave them exposed in a way they are not exposed in the US."

He pointed out that university facilities contain the potential for copyright infringement on an industrial scale. "Universities are now running very high speed networks with advanced infrastructure'¦I presented to the CIOs of 20 universities over a 1gigabit link to 16 high definition screens."

He said that IIA, and the universities, have been lobbying for years for the legislation to be amended, but have made no headway.

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"We have been pushing since 2005 together with Universities Australia, which represent the 38 universities in Australia. We have been talking to the Attorney General's Department; we have sent them submissions; we have said: this is an anomaly; that there is no justification for this differential treatment; that it is out of step with US law and with the Free Trade Agreement, so what reason can there be for leaving it there. To date we have received no real response. The issue is unresolved."

While Justice Cowdroy, who presided over the iiNet copyright case, had no need to invoke the safe harbour provisions because he found that iiNet had not authorised breach of copyright, he nevertheless gave detailed findings in his judgement on how these provisions would have applied to iiNet's conduct, saying" "given the extensive argument before the Court on the issue [of safe harbour protection] the paucity of judicial

consideration of the provision, and the relevance of the provisions for the Internet industry more broadly, there is value in the Court making its findings in regards to the safe harbour provisions."

He found that iiNet had fulfilled the requirements for claiming safe harbour protection. In reaching this conclusion, Cowdroy said he had relied heavily on US court decisions, "given the similarity in the relevant statutory instruments and the dearth of Australian authority interpreting the safe harbour provisions."

AFACT, the body representing the movie studies has appealed Cowdroy's judgement. The appeal hearing is set down for a hearing in the Federal Court in Sydney from 2-5 August.





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