RAISING THE BAR
Australia, the courts are already working on two crucial copyright cases that should bring much- needed clarity to a tricky and evolving area of law.
Te recent case of AFL, NRL and Telstra v Optus concerns a claim by two sports organisations and a TV operator, Telstra, against Optus. Te companies claimed that Optus had infringed copyright by providing Optus TV Now cloud- based services in relation to NRL (rugby league) and AFL (Australian rules football) matches broadcast on free-to-air television. Te first instance court found no infringement, on the basis that it was the users, and not Optus, who had made the recordings, and they could rely on the private and domestic use replay defence. Te appeal court’s judgment is expected imminently, but if the ruling stands, it could have a significant impact on the value of television rights for live sport.
Perhaps even more significant is Roadshow Films Pty Ltd v iiNet, another copyright case currently awaiting judgment on appeal at the High Court. Te case concerns the liability of internet service providers (ISPs) for peer-to-peer copyright infringement on the Internet. Te Federal Court found that iiNet did not authorise its users’ copyright infringement, and that copyright owners would have to provide iiNet
“THE GOVERNMENT IS DETERMINED TO GET THE BALANCE RIGHT, PROVIDING INCENTIVES FOR CREATORS AND INNOVATORS.”
exceptions in the Copyright Act are adequate and appropriate in the digital environment ... in a fast changing, technologically driven world it is vital for us to see whether existing statute is appropriate and whether it can be improved.”
with unequivocal evidence of infringement before the ISP could act on it.
In response to these two cases (and following hard on the heels of the first instance Optus decision), Australia’s then attorney general, Robert McLelland, in January commissioned the Australian Law Reform Commission to look into copyright law. He said in a statement: “Te inquiry will seek a review of whether the
University of Technology Sydney dean of law, Professor Jill McKeough, will lead the review. Commenting on her appointment, the current attorney general Nicola Roxon said McKeough’s “expertise in IP, consumer protection and commercial law, makes her eminently qualified to lead this in-depth review of the Copyright Act”. She added: “The government is determined to get the balance right between providing incentives for creators and innovators and encouraging new opportunities within a digital economy, including via the national broadband network.”
Australia is moving forward in all areas of IP law. Tis looks likely to pose some challenges over the next couple of years for practitioners and businesses that will take time to adjust to the changing landscape. But it seems certain that short-term pain will result in long-term gain, and Australia will emerge stronger and more competitive as a result. n
www.worldipreview.com
World Intellectual Property Review March/April 2012
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