Outdated copyright policies should be refreshed and clarified, since the iiNet vs Australian Federation Against Copyright Theft (AFACT ) debacle, according to a legal expert.
Representing 34 movie studios, AFACT sued iiNet copyright infringement based on the ISP’s alleged inaction over illegal downloads by its users. AFACT lost the case on February 4 but is officially contesting the decision.
The appeals process is likely to progress all the way up to the High Court. Despite conceding copyright issues will not be definitely resolved regardless of the case’s outcome, Dr Matthew Rimmer saw an appeal to the High Court as a good platform to discuss outdated rules relating to intermediary liabilities.
Dr Rimmer is a senior lecturer at the Australian National University’s College of Law and penned Digital Copyright and the Consumer Revolution: Hands off my iPod in 2007.
Safe-harbour provisions formed a decade ago were designed to protect ISPs from the actions of their users so long as providers take adequate measures in response to concerns raised by copyright holders.
Dr Rimmer claimed the current policy did not protect social networking sites and search engines, and failed to address the issue of intermediaries inundated by take-down notices from content owners which flag instances of infringement.
During the initial hearing, iiNet claimed it was flooded by an unreasonable volume of infringement notices by AFACT.
“These rules were framed in their present incarnation back in the 1990s in an age before search engines, Web 2.0 service popularity and before copyright owners could send out take-down notices in such an automated fashion,” he said. “I think the initial iiNet judgment was a good one but I think the larger question is about modernising the legal system to deal with the realities of how people actually use the Internet and how the marketplace is operating.”
While the courts have little power to change the law, Dr Rimmer said they would at least be able offer some clarity on the topic.
“It is a complex area of law,” he said. “Courts can play an important role in clarifying the messy area of law.”
Dr Rimmer was also concerned consumer interests were not adequately represented in the court case and called for advocacy groups to participate in the appeals process.
“At the moment, it’s a clash of the titans between iiNet and Hollywood but forgotten in that clash are the interest of individual users of the internet,” he said. “This has certain implications and consequences, with some discussion of whether Hollywood will sue peer-to-peer users in Australia.
“My concern is without the participation of suitable groups or advocates, those interests – which affect the majority of us -will not be given their due consideration.”
AFACT’s appeal is expected to be heard later this year.