Ivy Tsui is a JD candidate at Osgoode Hall Law School.
The Australian Internet Industry Association (IIA) is currently formulating a “code of conduct” for the Internet Service Provider (ISP) industry in order to clarify the reasonable steps ISPs should take if their subscribers have engaged in copyright infringement.
In a landmark copyright infringement case, Roadshow Films Pty Ltd. v. iiNet, the Federal Court of Australia ruled that ISP iiNet did not authorize the pirating of copyrighted materials of its file-sharing subscribers. This claim was brought, more than two years ago, by the Australian Federation Against Copyright Theft (AFACT), an anti-piracy organization representing 34 movie studios. At trial, AFACT argued that iiNet, by failing to take steps to stop infringing conduct, authorized piracy on its network. However, the Court held that “an ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright….iiNet is not responsible if an iiNet user chooses to make use of [the BitTorrent system] to bring about copyright infringement.”
An appeal against this judgment was dismissed. Following the dismissal, the IIA has planned to develop an industry copyright code to clarify the role of ISPs in preventing piracy. This code, which should be implemented within the year, is intended to provide certainty and guidance for internet intermediaries, including ISPs, search, hosting and social media providers, and future courts.
“[The code] would definitely be something that the court would have to take into account when determining future cases of [copyright infringement] authorization,” said IIA chief, Peter Coroneos.
The ISP iiNet together with the IIA, believe that market failure is the reason for copyright infringement. They claimed that piracy could be prevented if film studios could generate more supplies in proportion with the demand.
“If users have access to more and better content, when, where and in the form they choose to consume it, and at a realistic price, we’re quite sure the motivation for infringement will decline. We certainly don’t condone the infringement of copyright but internet users need attractive, lawful alternatives if we are to see positive behavioural change. There’s no reason why Australia shouldn’t be leading the way here,” Mr Coroneos said.
It is uncertain whether the code would force ISPs to provide notification, suspension or termination of user accounts when the users engage in copyright infringement. If it does, it might open a floodgate of liability for the infringement by users. It is also possible that the costs of internet services would increase, given that ISPs would be compelled to monitor their users and impose measures for such usage. On the other hand, considering the suggestion by iiNet and IIA, an alternative approach would be to increase supply in order to decrease copyright infringement. This is demonstrated by the success of Netflix that allows online streaming for a small fee, and the recent agreement between Warner Bros and Facebook to allow users to watch movies inexpensively.