2013 volume 18 Issue 4

Abstract

In 2008, a group of 34 television and movie companies instituted litigation seeking to prove that one of Australia’s largest internet service providers (‘ISPs’) was liable for ‘authorising’ its users’ infringements. At its essence, the argument was that liability arose from iiNet’s decision not to pass on unsubstantiated allegations of infringement to its subscribers. If accepted, this would have effectively forced all Australian ISPs to take a more active role in copyright enforcement activities than the law had previously required. This argument received a considerable degree of traction in the Full Court of the Federal Court of Australia. Had its decision stood, it would have led to an unprecedented common law driven graduated response. On ultimate appeal however, the High Court reined back that expansive interpretation and held that ISPs had no such positive duty to act. It suggested that, if the applicants wanted greater enforcement rights, they should seek them from the legislature. With reference to analogous privately-arranged graduated response schemes which operate in the United States and Ireland, this paper considers whether the High Court was right to be chary of a common-law driven graduated response.

Abstract

In Commonwealth v John Fairfax & Sons Ltd, Mason J granted an injunction in favour of the Commonwealth government, prohibiting book and newspaper publication of Australian government defence documents on the basis of copyright infringement. Following the release of government documents on the international whistle-blowing website WikiLeaks, commentators have queried whether an Australian government would follow Fairfax and pursue an action for copyright infringement against WikiLeaks. This article revisits the reasoning of Mason J and considers the findings of his Honour in the WikiLeaks context. It examines how issues of subsistence of copyright; infringement; and defences to infringement might be applied to the government documents and cables published by WikiLeaks and the likely outcome in each of these areas. The article concludes that this 1980 decision still provides a useful guide today and that a court would need to take great care in deciding any action against WikiLeaks, in relation to both the allegedly infringing documents and the application of the law.

Abstract

Photographs of identifiable persons are frequently published without their permission. Copyright law supports this practice because the photographer usually owns the copyright in the photograph and copyright includes a right of publication. Although many subjects of photographs argue that unauthorised publication of their image is an invasion of their privacy, privacy law rarely provides a remedy. The online environment has broadened the scale of this activity and has exacerbated the law’s deficiencies. Focusing mainly on New Zealand laws, this article proposes that copyright law should be changed in order to provide a quasi-privacy protection for identifiable persons in photographs. Although the concept of joint ownership is alien to privacy, joint ownership of copyright is permitted and would provide the subject with some control over dissemination of their image. A prerequisite for this proposal to be effective is that all photographs of human subjects must qualify for copyright protection. Although there have been calls to deny copyright to ‘mere snaps’, particularly those taken with digital cameras, in this article I draw on social science and visual arts literature to suggest that copyright protection can be justified for most photographs of human subjects.

Abstract

This article will examine the legality of the digital rights management (‘DRM’) measures used by the major e-book publishers and device manufacturers in the United States, European Union and Australia not only to enforce their intellectual property rights but also to create monopolistic content silos, restrict interoperability and affect the ability for users to use the content they have bought in the way they wish. The analysis will then proceed to the recent competition investigations in the US and EU over price-fixing in e-book markets, and the current litigation against Amazon in the US for an alleged abuse of its dominant position. A final point will be made on possible responses in Australia to these issues taking into account the jurisprudence on DRM in other scenarios.