AFACT tactics have origins in 1975 UNSW library case

Decision by High Court in 1975 heavily informs copyright law today

Some of the legal issues at stake and the tactics employed by the Australian Federation Against Copyright Theft (AFACT) in its civil case against Internet Service Provider iiNet in the Federal Court of Australia have their origins in a landmark copyright case involving the University of NSW library in 1975.

The University of NSW v Moorhouse (1975) case, in the High Court of Australia, heard the Australian Copyright Council (ACC) engaged a UNSW graduate named Paul Brennan to make photocopies of pages of books by Frank Moorhouse at the UNSW library.

Moorhouse did not know Brennan was asked to make copies of sections of his work, but later joined with the ACC to bring a test case against the university after he was informed of the breach of his copyrighted books.

After consideration of numerous copyright issues, the court found "the appellant (UNSW) authorised the doing on 28th September 1973 by Paul Brennan of the act of reproducing the literary work 'The Americans, Baby' in a material form and thereby infringed the respondents' copyright in the said work".

Read the court's decision in full.

Melbourne University Associate Professor of Law, Professor David Brennan — no relation to Paul Brennan — who has worked as a consultant for Screenrights, an organisation which aims "to facilitate the use of audiovisual material and to optimise returns to copyright owners through the collective management of their rights", said the case is a landmark decision in Australian law that "defines one of the boundaries of what is meant by authorisation liability in copyright. It is probably the most important case in Australia on authorisation."

In the AFACT v iiNet case, one the key arguments of the film studios is that the ISP authorised its users to breach copyright as it has control over the network — similar to the university’s control over use of the photocopy machines in its library.

"In the library case, the source of control really was the fact the university owned the photocopier and the real property — the library — so it could throw people out or control people inside," Professor Brennan said. "They had a very high level of control because they owned the physical property. That carries over to the Internet Service Provider in that there is a reasonably high degree of control over what a person using a carriage facility can do because, just as a library can throw somebody out, the ISP can disconnect them."

However, since the library decision, in 2000, the government amended the Copyright Act and included, in section 36(1A), a statement regarding three factors that must be taken into account when determining authorisation.

They are:

  1. "The extent (if any) of the person's power to prevent the doing of the act concerned;
  2. "The nature of any relationship existing between the person and the person who did the act concerned;
  3. "Whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice."

For Professor Brennan, there is also an important exception in the Copyright Act, section 39B, to be debated in the AFACT v iiNet case, which says: "A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in a work merely because another person uses the facilities so provided to do something the right to do which is included in the copyright."

Notably, AFACT investigator tactics, which were revealed in opening arguments last week, of becoming an iiNet customer and using BitTorrent to share copyrighted files, mirror those of the ACC. But Professor Brennan did not see this as too surprising.

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More about: ACT, Brennan, CA Technologies, etwork, iiNet, University of NSW, UNSW
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Comments

Anonymous

1

Good article - thanks for the legal background.

Baggyone

2

The big difference between the UNSW case and the iiNet case is that the library could "reasonably" monitor the activities of people using their photocopiers, while iiNet could not;
a) monitor all connections all the time (the comparison with UNSW fails by a factor of 10000s)
b)legally monitor communications over the network (telecommunications act), while the UNSW could in theory have had soemone watching what/how much was being photocopied.
c)sanction users on the unproved (in a legal sense) allegation of a third party, or else in turn open themselves to litigation by breaching their own terms and conditions.

However, they could have passed along the AFACT message and thus would have a far stronger legal position.

Anonymous

3

Yo Baggyone,
the library has

Yo Baggyone,

the library has no way to know if the person doing the photocopying is authorised to do it or not. That person could be the author or the publisher and could be well within their own copyrights to copy more than 10% of the book. If the person doing the copying was directed to do the copying, then presumably the person doing the directing was authorised to make those copies. Again, the library has no knowledge of this arrangement. It's the person doing the copying or the person doing the directing who may have infringed.

Also, did the library staff perform the copying or was it self-serve? If the library staff did it, then they should have been more careful to check for copyright breaches, but if it was self-serve, who's to know if you breached copyrights while no-one was looking?

Seems like a poor decision to blame the library for a bad decision by an individual user of the library (or a deliberate, pre-meditated violation of the law by an individual user of the library).

That's kinda like saying that VicRoads/RTA/etc are responsible for criminals planning a getaway by car---they should have stopped us from driving!

Anonymous

4

Any ISP is NOT an Authorised Criminal Investigator and as such is not allowed to snoop on users traffic without a court order.

Simple, iiNet would be illegally disconnecting users based on a allegation nothing more.

This bullcrap about authrised users to download.... comon they are not allowed to even know what is being downloaded without a court order.

AFACT = Wrong :)

Bruce

5

If the copyright holders ask someone to download their content, then surely that user has permission to make copies of that content, and therefore how could that be considered to be a copyright infringement? All it proves is that it is possible to use bittorrent without infringing copyright...

Telstra Sux

6

One of the things about

One of the things about Bannons argument is that with the cost, time and effort involved in "buying" a region encoded, DRM protected, copy of the movie, is the exhorbitant cost of the said product - most of which are not available in Australia;

That said, if basically all of the downloaders would not have paid for the movie in the first place, how can Bannon and his employers be stating that "it affects their revenue".

These people are greedy and dishonest.

Trish Hunt

7

Sony should be sued for the manufacture of DVD and CD burners which are used for the duplication of copyright protected music CDs and movie DVDs hired from public libraries, video shops and music stores.

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