The High Court of Australia (French CJ and Crennan J) this morning granted the applicant film companies special leave to appeal from the Full Court of the Federal Court’s decision in Roadshow Films v iiNet [2011] FCAFC 23.

The iiNet case concerns the liability of an internet service provider (ISP) for copyright infringements of its users through unauthorised file-sharing on the BitTorrent peer-to-peer network. Both the trial judge and the Full Court held that the ISP, iiNet, was not liable for its users’ copyright infringement. The majority of the Full Court emphasised however, that liability was not established in the circumstances only because the film companies had not provided more detailed information and verification to support their allegations.

During the hearing of the special leave application, Justice Crennan’s questions suggest that Her Honour thought the question of ISP liability was one of general public importance. In particular, Her Honour was interested in the requisite level of knowledge that needs to be established before liability is found.

There is a clear global trend toward imposing greater obligations on ISPs to combat online copyright infringement through “graduated response” schemes established under administrative and industry codes. In particular, we note the following overseas developments:

  • United Kingdom - The UK Government recently announced that it would progress with the implementation of ISP obligations pursuant to a regulatory code made under the Digital Economy Act 2010. Once fully implemented, ISPs would be required to pass on infringement notices to their users and to maintain records of frequent offenders. The code obligations would also include establishment of an independent appeals body to deal with appeals.
  • United States - A private agreement was reached in July 2011 between the six largest US ISPs and content owner groups which established a voluntary system of copyright notices and mitigation measures, including speed reductions and mandatory copyright education. The agreement also sets up an independent review system to deal with appeals. The voluntary system is expected to commence late this year.
  • New Zealand - The Copyright (Infringing File Sharing) Amendment Act 2011 and associated regulations have set up a system of warning, detection and enforcement notices. After the notice procedure, content owners can take enforcement action in the Copyright Tribunal, which has jurisdiction to make monetary awards against users of up to NZ$15,000.
  • Other jurisdictions - Similar “graduated response” schemes have also been introduced in France and South Korea.

It seems inevitable, whatever be the ultimate outcome of the iiNet case, that Australia will move, in the near to medium term, to impose on ISPs greater obligations to tackle online copyright infringement.

The appeal is expected to be heard later this year.

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