Addressing Copyright Infringement Online Through Secondary Liability and Website Blocking: A Submission to the Australian Government

27 Pages Posted: 4 Sep 2014 Last revised: 3 Nov 2014

See all articles by Isabella Alexander

Isabella Alexander

University of Technology Sydney, Faculty of Law

Robert Burrell

University of Melbourne - Law School

Michael Handler

University of New South Wales (UNSW) - Faculty of Law

Emily Hudson

King's College London – The Dickson Poon School of Law; T.C. Beirne School of Law, University of Queensland

Kimberlee G. Weatherall

The University of Sydney Law School

Date Written: September 2, 2014

Abstract

This submission responds to two proposals by the Australian government to address online copyright infringement (1) expanding secondary liability for copyright infringement (the doctrine of authorisation) to increase the ‘incentives’ for network access providers to ‘cooperate’ with copyright owners, and (2) introducing a mechanism to allow copyright owners to apply to the court for an injunction to block overseas websites with the ‘dominant purpose’ of facilitating copyright infringement. The submission argues against the expansion of secondary liability, outlining the many problems that have resulted in recent years in Australia from legislative attempts to ‘clarify’ or codify the doctrine of authorisation. It points out the hybrid nature of the Australian law prohibiting ‘authorisation’ of copyright infringement, as a creature of both statute and common law, and how this impacts on legislative attempts to guide the courts. It also points out that internet service provider safe harbours, introduced as a result of Australia’s Free Trade Agreement with the US, would also undermine the government’s goals. In relation to website blocking, the submission reviews developments in Europe and elsewhere and suggests a range of safeguards and limitations that should be considered, including limiting availability of an injunction to cases of serious infringement, where the injunction will not impact on lawful access, ensuring that the order does not impact adversely on the ability of network providers to run a business, ensuring natural justice and procedural fairness. We also argue for a sunset clause to ensure proper review of its operation after an appropriate period. The submission also examines, and rejects, an argument that Australia’s bilateral trade agreements with the US, Singapore, Korea and/or Japan require Australia to expand the liability of internet access providers for copyright infringement by their customers.

Keywords: Copyright, peer-to-peer (P2P), secondary liability, authorization, vicarious, contributory, website blocking, enforcement, injunctions, intermediaries

JEL Classification: K10, K30

Suggested Citation

Alexander, Isabella and Burrell, Robert and Handler, Michael and Hudson, Emily and Weatherall, Kimberlee Gai, Addressing Copyright Infringement Online Through Secondary Liability and Website Blocking: A Submission to the Australian Government (September 2, 2014). Sydney Law School Research Paper No. 14/82. Available at SSRN: https://ssrn.com/abstract=2490744

Isabella Alexander

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

Robert Burrell

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Michael Handler

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia
+61 2 9385 2874 (Phone)

Emily Hudson

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

T.C. Beirne School of Law, University of Queensland ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

Kimberlee Gai Weatherall (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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