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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