A new research paper into authorisation liability commissioned by the Australian Digital Alliance has thrown into further doubt claims that we are in breach of our international obligations. 

Comparing Australia’s regime to those in place in other common-law countries, including the USA, the report concludes that ‘Australia’s authorisation law is already at least as broad as its overseas equivalents’ and that extending it further ‘would impose new obligations on all sectors beyond those required of their competitors overseas’. 

The research paper, prepared by Monash academic Dr Rebecca Giblin and commissioned by the ADA, examines the proposals by the government to extend ‘authorisation liability’.  This legal doctrine determines when third parties can be found liable for the copyright infringements of others.  In particular the proposal is aimed at making sure ISPs take action to stop their users infringing copyright. 

Similar schemes referenced in the discussion paper include passing on educative notices and ‘graduated response’ schemes where users are disconnected for repeat infringements.  The discussion paper notes these changes would be ‘consistent’ with our international obligations.

Previously the Department of Foreign Affairs used the National Interest Analysis for the Korean-Australian Free Trade Agreement (KAFTA) to advise that we were currently non-compliant with our international obligations.  They recommended changing the copyright act to overturn the outcome in the iiNet case, the proposal that was subsequently made by the government in the online copyright infringement discussion paper referenced above. 

The Joint Standing Committee on Treaties final report notes that the:

majority of evidence received by the Committee took exception to the proposal. It was described variously as ‘incorrect’ and ‘inaccurate and ‘misleading’

The minority reports from Labor and the Greens have called for KAFTA to be renegotiated or rejected, both noting IP as a critical area where KAFTA currently falls short. 

With the claims of international inconsistency refuted, the proposal to extend authoirsation liability becomes a purely domestic issue to be debated on its merits.  Here Dr Giblin’s report makes for serious reading. 

It finds that:

• the proposed expansion of liability would potentially have significant deleterious effects for Australian institutions;
• the existing Australian law is already as broad as or broader than those of its counterparts overseas (and fully compliant with its international obligations);
• the proposal would use a ‘one size’ fits all approach contrary to a century of authority emphasising the necessity of determining liability with reference to all of the facts of each case;
• it would give copyright owners considerably broader rights against Australian individuals and institutions than those suffering economic loss because of torts committed in other contexts (without any justification of why they should receive such special treatment);
• the proposed amendments would likely result in persistent rightholder lobbying for new regulations that go further and do more, perpetuating uncertainty about the scope of intermediaries’ obligations and liability;
• it would oblige greater reliance on ‘safe harbours’, driving increased account terminations;
• the increased costs and uncertainty would make Australia less competitive and a less attractive place for investment; and
• there has been no clear analysis about the benefits likely to be obtained in exchange for these costs.

Submissions to the proposal are being added at http://www.ag.gov.au/Consultations/Pages/OnlineCopyrightInfringement-PublishingSubmissions.aspx#_i