IV THE IMPACT OF COPYRIGHT INFRINGEMENTS ON THE ENTERTAINMENT INDUSTRY &
SOCIETIES ATTITUDES TOWARDS COPYRIGHT
The overwhelming majority of files available for sharing on P2P networks are copyrighted works, such as digital files which include sound recordings, television shows, and motion pictures. The International Federation for the Phonographic Industry estimates that 95% of music downloads are unauthorised, and 60-80% of internet traffic transmitted through ISPs is comprised of the illegal file sharing of copyright material. It is estimated that in Australia around 2.8 million people, or 18% of the population illegally download music through file sharing every year. Additionally, a recent study by the Australian Institute of Criminology discovered Australians are, per capita, the most prolific downloaders of television shows from the internet.
The impact that illegal online file sharing has on creative industries is substantial. Online music piracy alone is estimated to cause $12.5 billion of economic loss worldwide every year. It has become increasingly difficult for copyright holders to obtain remuneration for their creative efforts in an online environment where digital copyright works are readily available for free. Uploading and downloading using P2P file sharing technology of these copyrighted works without the authorisation from the copyright holders is a violation of the copyright holders’ exclusive rights to control the reproduction and distribution of their works. However the mentality of the recent generations who have grown up with personal computers and the internet is that online content is free to be shared. They tend to have very little respect for intellectual property rights, with many believing that they will not be caught or prosecuted for their conduct. ‘Today, the breach of copyright in an intangible digital work is not viewed the same way as theft of a tangible physical work.’ After countless time consuming and expensive litigation battles between rights holders and the seemingly ignorant individual P2P copyright infringers, alternative measures to enforce copyright infringement has shifted to focus on ISPs.
V INTERNET SERVICE PROVIDERS LIABILITY FOR COPYRIGHT INFRINGEMENT
Over the last decade, landmark legal battles with individual file sharers and P2P providers over copyright infringement have shaped both the legal and technological landscape of P2P file sharing. The copious amount of resources that have been invested by copyright holders in litigation to enforce their rights has been unsuccessful in decreasing copyright infringement, and have in turn, pushed file sharers from one infringement-facilitating technology to another. The attempt to bridge the divide between the social norms of file sharing and the legal norms of copyright has seen, in recent years, copyright holders turn to ISPs to be held accountable for their subscribers infringing acts. However the question of whether ISPs should be held liable for their subscribers online copyright infringements is debatable. Should ISPs be treated as electronic publishers, and thus made directly liable for all the infringing material flowing through their servers r are they merely carriers or postmen of the internet? In Australia there been a number of high profile cases that have brought ISP liability of copyright into question, primarily regarding the authorisation of their subscribers infringing act of rights holders copyright material. Whether a person or entity is guilty of authorisation liability hinges on the nature of any relationship between the parties, and whether the party accused of authorisation took any reasonable steps to prevent or avoid the commission of the act concerned. Under section 112E of the Copyright Act 1968 (Cth), an ISP is not deemed to have authorised copyright infringement merely by virtue of having provided facilities, a recognition that all they do is to route internet traffic. The legislation that:
…assuming there is a direct infringement of copyright by a person, provided that the ISP has satisfied the relevant conditions, their liability will be limited to terminating the account of the end user and the court may not grant damages or account of profits or any other relief.
However believe that as ISPs are the gatekeepers to the internet, they have the and ability to control the acts of their subscribers as they have the technical power to terminate services at any time, which may facilitate in curtailing and preventing further infringement. In addition, it is argued that an ISP derives a substantial financial benefit from the infringing activity due to subscribers paying monthly fees for having their higher-usage tariffs and line connections. This in turn encourages their subscribers to maximise their large bandwidth plans, while the economic self-interests encourage ISPs to seemingly turn a blind-eye to their subscribers’ activities.
Moreover, after pressures amounting from the World Intellectual Property Organisation and its international treaty on copyright, in addition to countless efforts against individual music freeloaders, the Recording Industry Association of America (RIAA), who are the primary agent of the music industry in the United States, changed its strategy. Instead the RIAA proposed a new collaboration with ISPs to be the new online watchdogs and enforcers and to assist in stopping online copyright infringements. This saw the United States implemented provisions under section 512 of the Digital Millennium Copyright Act 1988 (DMCA) in an attempt to reconcile copyright owner and ISP interests. As the new watchdogs for P2P file sharing infringements, ISPs lobbied for a large measure of impunity if they met certain requirements in responding expeditiously to a proper notice from the copyright holder regarding copyright infringements. Since then, similar legislation regulating the liability of ISPs for copyright infringement has been enacted in Australia.
In 2006, the Copyright Act 1968 was amended pursuant to the Australia-United States Free Trade Agreement, to provide a scheme offering legal incentives for carriage services providers (which includes ISPs) similar to those found in the DMCA. The new safe harbour scheme provided that ISPs were to cooperate with copyright owners in deterring copyright infringements on their networks. In order to qualify for the safe harbour, an ISP must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers. However it is not mandatory for ISPs to implement such policies, and while the legislation is seemingly vague, there is debate about whether termination decreasing online copyright infringements using file sharing technology.
VI A TIME FOR CHANGE
At the forefront of the debate regarding statutory safe harbours is whether ISPs should be held to bear the burden of time and costs for enforcing restrictions on their subscribers. One of the main requirements of ISPs qualifying for safe harbour provisions is terminate subscribers’ connections if they are found to be infringing copyright material. However, termination goes far beyond removing the facility for the commission of copyright infringement, and it may contravene basic and fundamental rights. Termination is a drastic step and is arguably disproportionate. It is seen to limit freedom of expression by removing a subscribers ability to search and receive data via the internet. In addition to this, not only does it cut off access for the infringer, but for the whole household, to something that is fundamental – a link to the world, the means by which Australians conduct their homework, banking, book their holidays and run their businesses. Access to the internet is a valuable service. It should not be removed where it has not demonstrably caused significant economic damage to anyone.
termination may not even have the deterrent effect on infringement that copyright holders desire. What is to stop an infringer who has had their internet connection terminated using publicly accessible wireless internet connections to continue their infringing escapades? These challenges for implementing such policies need to be seriously considered by right’s holders. Copyright holders may need to focus on alternative solutions to infringement based on commercial innovations of viable and attractive legal alternatives to file sharing.
VII ALTERNATIVE MEASURES FOR PROMOTING COPYRIGHT
The future of copyright protection lies with the creation of new distributional structures that do not limit the development of potentially useful technologies. ‘If a robust means of compensating and incentivising creative production can be attached to P2P file sharing technologies, then as a distributional channel, P2P is more than capable of satisfying the goal of access to creative works.’ The need for copyright owners, particularly in the music, film and television industry, to provide a means for consumers to access and download content easily and legitimately has been a debate for a number of years. There is genuine public interest in legal models that offer a similar experience to illegal file sharing by providing simple access to a broad range of works. The success of legal services such as the Apple iTunes Music Store and the resulting increase in revenue to the music industry has demonstrated that users are willing to pay for content if it is available quickly and at a reasonable price. A shift in focus is clearly needed from finding legal solutions to minimise copyright infringement to adopting a solution which incorporates a commercial approach that maximises authorised use, while capitalising profits
VIII CONCLUSION
It is evident that for creative artists in the entertainment industry, continue to raise new challenges, which in turn will need to be continuously met by legislative evolution. The digital era has seen a rise in popularity in P2P file sharing which has inevitably tested the limits of intellectual property rights and copyright laws. Disrespect for digital intellectual property rights has become a common mindset as the powers to copy and communicate have developed. The last few decades have seen unsuccessful efforts by copyright holders to stop file sharing through litigation and legal deterrents. The law seems questionable in relation to what extent ISPs should be held liable, however there are safe harbour provisions in place to limit liable for ISPs. In order to embrace the ever-changing landscape of P2P file sharing culture, the focus must shift from seeking to punish online behavior to creating new habits that embrace the underlying goals of copyright.
Given that new technological advances continue to modify the way in which intellectual property is created and used, the laws need to be constantly revised by parliament and interpreted by the courts to cover the ongoing process of technological change. The current legal solutions simply cannot keep pace with technology ver-regulation must be avoided for copyright law to remain relevant and ensure that the gateway keepers of the internet and their subscribers are not criminalised As Shane Simpson, an Australian music industry lawyer and academic has observed:
The challenge, just one of many, is to ensure that the laws of copyright adapt to the new technological environment in a way that feeds and encourages creative activity rather than a way that inhibits or overwhelms it.
The answers to the questions raised herein have fundamental implications for the future design of copyright, innovation, creativityfreedom of speech and expression. To believe these questions are not genuinely issue today is to remain in denial. It is evident that a more attractive alternative model to access copyrightworks is provides economic incentives for the creation and distribution of works of original expression and harmonises the interests of copyright holders and consumers To bridge the gap between copyright holders and file sharers, a new way forward is undoubtedly needed.
BIBLOGRAPHY
- Articles/Books/Reports
Alqudah, F, ‘Internet Service Providers’ Liability for Copyright Infringement’ (December 2009) (79) Journal of the Intellectual Property Society of Australia and NZ.
Australian Government: Attorney-General’s Department, ‘Revising the Scope of the Copyright ‘Safe Harbour Scheme’ and the Process of Seeking ISP Subscriber Details in Copyright Infringement Matters’ (October 2011) Consultation Paper <> at 7 January 2012.
Brennan, D, and Weatherall, K, ‘Topic of Interest: ISPs and the Authorisation of their Customers’ Copyright Exploitations’ (2009) 20 Australian Intellectual Property Journal 6.
Dawes, M, ‘Comment: iiNet is a little bit of history repeating’ (30 July 2010) itNews for Australian Business <> at 7 November 2011.
Fitzgerald, B, O’Brien, D, and Fitzgerald, A, ‘Search Engine Liability for Copyright Infringement’ (9 June 2010) <http://www.eprints.qut.edu.au/7883/1/7883.pdf> at 7 November 2011.
Gething, S, ‘Chapter 19 – Criminal Infringement of Copyright: The Big Crook Case’ (2008) Sydney University Press Law Books [25] <> at 3 November 2011.
Giblin, R, ‘The uncertainties, baby: Hidden perils of Australia's authorisation law’ (2009) 20(3) Australian Intellectual Property Journal.
Ginsburg, J, and Ricketson, S, ‘Separating the Sony Sheep from the Grokster Goats: Reckoning the Future Business Plans of Copyright-Dependent Technology Entrepreneurs’ (2008) 19(1) Australian Intellectual Property Journal.
Harrop, M, Something For Nothing: Copyright, ISP Liability and P2P File Sharing (October 2009) <> at 4 December 2011.
International Federation of the Phonographic Industry, ‘IFPI Digital Music Report 2011’ (2011) <> at 7 January 2011.
Lambrick, J, ‘Piracy, File Sharing...and Legal Fig Leaves’ (2009) 4(3) Journal of International Commercial Law and Technology.
Liebowitz, S, ‘File-Sharing: Creative Destruction or just Plain Destruction?’ (2006) 49 Journal of Law and Economics 1.
Mishra, V, ‘ISP Liability for Third Party Copyright Infringement: A Comparative Analysis for Setting International Standard Norms’ (2009) 21 Sri Lanka Journal of International Law 215.
Moses, A, ‘Net Pirates Face Three-Strike Rule’, Sydney Morning Herald (Sydney), 16 July 2009, <> at 30 November 2011.
Murtagh, M, ‘The FCC, the DMA, and Why Takedown Notices Are Not Enough’ (2009) 61 Hastings Law Journal 233.
Napthali, M, ‘Unauthorised: Some thoughts upon the doctrine of authorisation of copyright infringement in the peer-to-peer age’ (2005) 16 Australian Intellectual Property Journal 5.
Priest, E, ‘CHAPTER SIX: Why Emerging Business Models and Not Copyright Law are the Key to Monetising Content Online’ (2008) Sydney University Press Law Book [12].
Robertson, I, and Luu, L, ‘ISP’s liability for Pirated Films - Federal Court of Australia rules in test case’ (June 2010) Holding Redlich Lawyers <www.holdingredlich.com.au/holding-redlich-in-the-news?...69%3Aisp... liability-for-pirated-films-federal-court-of-australia-rules-in-test-case> at 4 December 2011.
Simpson, S, Music Business: A Musician’s Guide to the Australian Music Industry by Top Australian Lawyer and Dealmaker (3rd Ed. 2006) <> at 2 December 2011.
Vitins, M, and Wiseman, A, 'The Means, Baby': ISP Responsibility for Copyright Infringement and the Need for an Industry Code of Practice’ (June 2010) (81) Journal of the Intellectual Property Society of Australia and New Zealand.
Weatherall, K, ‘Topic of interest: ISPs and the authorisation of their customers' copyright exploitations’ (2009) 20(1) Australian Intellectual Property Journal.
Winterford, B, ‘ACTA leak: ISPs to be bound by new rules’ (2 March 2010) itNews for Australian Business <> at 7 November 2011.
Yeh, B, ‘Statutory Damage Awards in Peer-to-Peer File Sharing Cases Involving Copyrighted Sound Recordings: Recent Legal Developments’ (16 September 2010) Congressional Research Service Report for Congress <> at 4 December 2011.
- Cases
A&M Records, Inc. v Napster, Inc., 114 F Supp 2d 896 (ND Cal 2000).
A&M Records, Inc. v Napster, Inc., 239 F 3d 1004 (9th Cir 2001).
Metro-Goldwyn-Meyer Studios, Inc. v. Grokster, Ltd 545 US 913 (2005).
Roadshow Films Pty Ltd & Ors v iiNet Ltd (No 3) 2010 FCA 24.
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) FCA 1242.
- Legislation
Copyright Act 1968 (Cth).
Digital Millennium Copyright Act 1988.
4. Treaties
World Intellectual Property Organization (WIPO) Copyright Treaty, opened for signature 1996, Signature Treaty Document Number 105-17 (entered into force 1997).
- Other Sources
Adelepace’s Blog, The iiNet Case – ISP liability for copyright infringement (30 April 2009) <> at 11 December 2011.
Australian Legal Guide to Citation (2nd ed, 2002) Melbourne University Law Review Association Inc, Melbourne.
BitTorrent <> at 7 January 2012.
CCH Intelliconnect, ISP did not authorise copyright infringement by its users (25 February 2010) <]> at 30 November 2011.
Fairbairn, J, and Webb, T, Australia: Users, not ISPs, liable for copyright infringement after iiNet decision (9 February 2010) <> at 4 December 2011.
International Federation of the Phonographic Industry, Digital Music Report 2009 (2009) 22 <http://www.ifpi.org/content/library/dmr2009.pdf> at 4 December 2011.
Puterbaugh, C, Illegal downloads or legal purchases? (13 May 2010) <>
at 7 November 2011.
The Pirate Bay <> at 7 January 2012.
TorrentFreak, France Starts Reporting ‘Millions’ of File-Sharers (21 September 2010) <> at 30 November 2010.
V Mishra, ‘ISP Liability for Third Party Copyright Infringement: A Comparative Analysis for Setting International Standard Norms’ (2009) 21 Sri Lanka Journal of International Law 215, 215.
B Fitzgerald, D O’Brien and A Fitzgerald, ‘Search Engine Liability for Copyright Infringement’ (9 June 2010) <http://www.eprints.qut.edu.au/7883/1/7883.pdf> at 7 November 2011, 2.
R Giblin, ‘The uncertainties, baby: Hidden perils of Australia's authorisation law’ (2009) 20(3) Australian Intellectual Property Journal, 148.
M Harrop, Something For Nothing: Copyright, ISP Liability and P2P File Sharing (October 2009) <http://www.otago.ac.nz/law/oylr/2009/Matt_Harrop.pdf> at 4 December 2011, 4.
M Vitins, and A Wiseman, 'The Means, Baby': ISP Responsibility for Copyright Infringement and the Need for an Industry Code of Practice’ (June 2010) (81) Journal of the Intellectual Property Society of Australia and New Zealand, 14.
M Dawes, ‘Comment: iiNet is a little bit of history repeating’ (30 July 2010) itNews for Australian Business <> at 7 November 2011.
V Mishra, above n 1, 216.
Vitins and Wiseman, above n 5, 13.
F Alqudah, ‘Internet Service Providers’ Liability for Copyright Infringement’ (December 2009) (79) Journal of the Intellectual Property Society of Australia and NZ.
D Brennan and K Weatherall, ‘Topic of Interest: ISPs and the Authorisation of their Customers’ Copyright Exploitations’ (2009) 20 Australian Intellectual Property Journal 6, 6.
B Yeh, ‘Statutory Damage Awards in Peer-to-Peer File Sharing Cases Involving Copyrighted Sound Recordings: Recent Legal Developments’ (16 September 2010) Congressional Research Service Report for Congress <> at 4 December 2011, 3.
J Lambrick, ‘Piracy, File Sharing...and Legal Fig Leaves’ (2009) 4(3) Journal of International Commercial Law and Technology, 185.
S Liebowitz, “File-Sharing: Creative Destruction or just Plain Destruction?” (2006) 49 Journal of Law and Economics 1, 4.
Lambrick, above n 1, 185.
Data co-ordination: P2P technology can be used by organisations to provide workers with data and co-ordinate activities on large projects where little infrastructure exists. For example, humanitarian groups operating in Iraq have used P2P technology to synchronise the distribution of aid.
Distributed computing: P2P technology enables idle disk space and processing power to be utilised, meaning that organisations can create a virtual supercomputer by aggregating unused computing resources (eg. desktops).
Lawful sharing of copyright and public domain material: Through file sharing, P2P technology enables content publishers who wish to make significant content available to large numbers of people to distribute that content at minimal cost.
Lambrick, above n 1, 186.
A&M Records, Inc. v Napster, Inc., 239 F 3d 1004 (9th Cir 2001).
A&M Records, Inc. v Napster, Inc., 114 F Supp 2d 896 (ND Cal 2000); affirmed in A&M Records, Inc. v Napster, Inc., 239 F 3d 1004 (9th Cir 2001).
Metro-Goldwyn-Meyer Studios, Inc. v. Grokster, Ltd 545 US 913 (2005).
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) FCA 1242.
S Simpson, Music Business: A Musician’s Guide to the Australian Music Industry by Top Australian Lawyer and Dealmaker (3rd Ed. 2006) <> at 2 December 2011, 292.
http://www.bittorrent.com/
http://www.thepiratebay.org/
M Napthali, ‘Unauthorised: Some thoughts upon the doctrine of authorisation of copyright infringement in the peer-to-peer age’ (2005) 16 Australian Intellectual Property Journal 5, 23.
The International Federation of the Phonographic Industry (IFPI) is the organisation that represents the interests of the recoding industry worldwide.
International Federation of the Phonographic Industry, Digital Music Report 2009 (2009) 22 <http://www.ifpi.org/content/library/dmr2009.pdf> at 4 December 2011.
Lambrick, above n 1, 186.
Australian Institute of Criminology, Report No 94, Intellectual Property Crime And Enforcement In Australia (2008) in K Weatherall, ‘Topic of interest: ISPs and the authorisation of their customers' copyright exploitations’ (2009) 20(1) Australian Intellectual Property Journal.
S Siwek, “The True Cost of Copyright Industry Piracy to the U.S Economy” (2007) Institute for Policy Innovation, Policy Report 189 <www.ipi.org> at 23 September 2009 in M Harrop, above n 4, 9.
One example of this is the recent Australian decision in the iiNet case of Roadshow Films Pty Ltd & Ors v iiNet Ltd (No 3) 2010 FCA 24. This case is now on final appeal in the High Court of Australia and commence on 2 December 2011.
Adelepace’s Blog, The iiNet Case – ISP liability for copyright infringement (30 April 2009) <> at 11 December 2011.
K Weatherall, ‘Topic of interest: ISPs and the authorisation of their customers' copyright exploitations’ (2009) 20(1) Australian Intellectual Property Journal, 6.
The treaty is known as the World Intellectual Property Organisation Copyright Treaty (WIPO Copyright Treaty). The treaty is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides additional protections for copyright deemed necessary due to advances in information technology since the formation of previous copyright treaties before it.
The RIAA have been responsible for over 35,000 lawsuits against P2P file sharers.
Digital Millennium Copyright Act 1988.
J Ginsburg, and S Ricketson, ‘Separating the Sony Sheep from the Grokster Goats: Reckoning the Future Business Plans of Copyright-Dependent Technology Entrepreneurs’ (2008) 19(1) Australian Intellectual Property Journal, 121.
Copyright Act 1968 (Cth).
Australian Government: Attorney-General’s Department, ‘Revising the Scope of the Copyright ‘Safe Harbour Scheme’ and the Process of Seeking ISP Subscriber Details in Copyright Infringement Matters’ (October 2011) Consultation Paper <> at 7 January 2012, 3.
J Fairbairn, and T Webb, Australia: Users, not ISPs, liable for copyright infringement after iiNet decision (9 February 2010) <> at 4 December 2011.
D Brennan and K Weatherall, above n 1, 11.
CCH Intelliconnect, ISP did not authorise copyright infringement by its users (25 February 2010) <]> at 30 November 2011.
M Napthali, above n 3, 9.