The Uncertainties, Baby: Hidden Perils of Australia's Authorisation Law

30 Pages Posted: 12 Jan 2010

See all articles by Rebecca Giblin

Rebecca Giblin

University of Melbourne - Law School

Date Written: November 11, 2009


As digital copying and online distribution become increasingly prevalent, the issue of when a technology provider can be held liable for its users’ infringements grows commensurately more important. In Australia, such liability is imposed through the tort of authorisation, which provides that a defendant will be liable if it “sanctioned, approved or countenanced” a third party infringement. Despite its significance however, some of the principal elements of the doctrine remain unclear. After tracing the origins and development of authorisation in Australia, the work explores the main uncertainties that plague the law today. With reference to the BitTorrent file sharing software, the work then explicitly highlights the ways in which those uncertainties may affect the provider of a useful technology that has both non-infringing and infringing uses. The underlying theme of the work is that, by failing to unequivocally dismiss the increasingly expansionist arguments that are being raised in this context, courts are inadvertently promulgating a de facto expansion of the Australian authorisation law. It concludes by arguing that, unless courts start concertedly addressing the law’s uncertainties and ambiguities, the law will continue to have a more dampening effect on technological innovation in Australia than courts or the legislature ever intended.

Keywords: authorisation, authorization, secondary liability, bittorrent, moorhouse, kazaa, napster, copyright, infringement, p2p

JEL Classification: O34

Suggested Citation

Giblin, Rebecca, The Uncertainties, Baby: Hidden Perils of Australia's Authorisation Law (November 11, 2009). Australian Intellectual Property Journal, Vol. 20, pp. 148-177, 2009, Available at SSRN:

Rebecca Giblin (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010

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