SAMPLE ESSAY QUESTION & ANSWER The purpose of making this paper available is to illustrate what an essay question/ answer looks like. The discussion here is about intellectual property law in Australia and everything contained here are NOT RELEVANT to your study in company law. In general, essay questions ask you about your views, comments or whether you agree with a statement, you have to use authorities (cases and publications) to support your answer. Assessment Task 5: Research Essay Due Date: 12 July 2009 Maximum word length 1500 words
The main purpose of the assignment is to enhance your legal research, writing and analytical skills. Given the word limit, it is essential for you to be precise and succinct in the way you answer the question. In answering the question, you are expected to engage in legal and policy analysis. If you spend too much time merely describing the law, dealing with irrelevant matters or writing broadly on your chosen topic, you will obviously be penalised.
Assignment Questions: Please choose ONE of the following questions. Question One
‘The recent Federal Court decision in Larrikin in Larrikin Music Publishing v EMI Songs [2010] FCA 29 is a recent illustration of an ever-present danger in copyright infringement cases. The danger is that courts will find infringement has occurred where what has been taken is, in reality, merely an idea. Such decisions have the potential to inhibit creativity creativity and the free flow of ideas.’ Discuss with particular reference to infringement of copyright in music. Question Two
‘The recent Federal Court decision in Roadshow Films v iiNet (No 3) [2010] FCA 24 is an invitation to piracy – piracy – or or at least, an invitation to those who facilitate piracy. The courts should reinterpret the authorisation provisions of the Copyright Act to give better protection to film-makers and musicians, whose works may so easily be reproduced.’ Do you agree?
Introduction
The recent judgment of the Roadshow Films Pty Ltd v iiNET Limited (No.3) is the first case that the ISP was alleged to be liable for subscriber ’s infringing activities. The issue was whether an ISP could be liable for authorizing copyright infringement of it’s subscriber. The Federal Court of Australia held that iiNet was not liable. Some suggested that it is an invitation to facilitate piracy and the law should offer better protection to copyrighted work in digital arena. This essay will examine the implication of the judgment and possible way to further protect intellectual property in digital age. The iiNet Judgment
It was held that iiNet is not liable for authorization. Cowdroy J found that there is no positive duty to protect third part copyright. The court, in interpreting s.101(1A), follows the decision in the Madonna case1, held that the iiNet is not liable as internet is the precondition, not the means to infringement. There is insufficient direct financial interest between iiNet and the infringing activity to establish iiNet’s authorization. The court was not persuaded that mere knowledge and the power to prevent necessarily constituted authorization.2 To sum up, the iiNet decision put ISP in a relative safe position of being sued for infringement. It is clear that the burden of policing the internet is rested on the copyright owner. The current position
Some suggested that “the system for protecting copyright and intellectual property is broken; the law has failed to keep pace with the internet.” The court ruling, seemingly, gave a green light to those who facilitate infringement in digital age. The court said “the law recognize no positive obligation to protect the copyright of another. ” As Anita Cade put it : “ISP in the position of iiNet do not have an obligation to act as judge, jury, and executor when it comes to the allegedly infringing conduct of their users.” 3 Authorization of infringing acts is hard to be established for the mere provider of good or service that could be used for infringement. 4 In US case Sony Corp of America v Universal City Studio 5, Sony not liable because the product has other non-infringing use. In Australia Tape Manufacturers v Commonwealth of
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WEA International Inc v Hanimex Corp Ltd 1986 17 FCR 274.
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Roadshow Films Pty Ltd v iiNet Ltd(No.3), para 472. Anita Cade & Lisa Ritson, Australian Intellectual Property Law Bulletin, March 2010
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4 ISP’s liability for Pirated Films — Federal Court of Australia rules in test case, Ian Robertson & Linda Luu, Entertainment Law Review 155, June 2010 5
464 US417 1984
Australia6, the manufacturer was not liable as it has no control to the use of the article. It is suggested that the provider of the products could not be held liable if they can serve for other infringing use.7 However, the issue of authorization in digital age is not that straightforward: it is hard to make out authorization of an ISP, and it is equally hard to enforce copyright without the ISPs’ help. P2P networks
In the landmark cases regarding P2P networks, namely Grokster, 8 Napster,9 and Kazaa decision,10 all defendants were held liable because defendants encouraged infringement: for example, they had materially contributed to the infringement, derived commercial gain, or positively encouraged the infringement. The ruling, however, would be drastically different if the operator merely provide network service and did nothing to encourage or prohibit the use of the network, like the iiNet. File sharing itself does not necessary constituted copyright infringement, thought it can be used as a tool for infringement. iiNet’s decision, concord the sony doctrine, implies that ISPs or P2P software developer is unlikely to be found infringing. 11 I cannot accept that
a judgment for an ISP is an invitation to facilities pivacy.
Reinterpretation of the law is highly unadvisable as it would deviates from the Madonna’s case and Sony doctrine. The unsuccessful attempted to hold iiNet liable for authorization equals to an attempt to shift the duty of enforcing copyright to ISPs. The applicant ’s analogy is that the ISP had the knowledge of the infringement but do nothing to stop it constituted infringement. If this analogy runs, it would impose all ISPs a duty to make sure that no infringing activities exist in the network, or if ISPs find out the infringement, they are obliged to crack down the infringing activities. How to offer better protection
Currently, the copyright owner is difficult to stop internet infringement without the cooperation of the ISP. In overseas jurisdiction, including US and UK, legislation had been enacted to strengthen copyright protection by a graduate response scheme by ISPs12.
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(1993) 177c.L.R. 480. Law of eCommerce., at para 30375 8 MGM v Grokster Ltd (2005) 64 IPR 645. 9 A&M Records, Inc v Napster Inc 239 F 3d 1004(2001) 10 Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 11 Natalie Hazel, Inhouse Council., March 2010 12 Internet Law Bummetin Vol12 No.10. 7
The UK Parliament enacted the act on April 2010, which adopted a graduate response policy. The new legislation requires the ISP issue warnings to those who engaging in illegal file sharing13, and the ISPs slow down or suspend the internet access 14. It received a lots of criticism. Talk Talk, one of the biggest ISP complained that they would be forced to block its subscriber. 15 Some contented that it poses a risk on those offering Wi-Fi to customers would have their service shut off. 16 The Digital Millennium Copyright Act was passed in 1998. The court defines ISP in a very broad sense, it includes online auction, shopping sites and file sharing service. 17 It provides that they can rely on the safe habour provision if the ISPs comply with the procedures to takedown infringing users. Safe habour provision will protect the ISPs not receive a financial benefit directly attributable to the infringing activities; does not have actual knowledge of the infringing material; acts expeditiously to remove the material.18 The US experience tells us that enforcing copyright by way of litigation is likely to result negative publicity. The Recording Industry Association of America( RIAA),recently, attempted to cooperate with ISP and ask the ISP to notify the subscriber for infringement. However, ISPs are reluctant to cooperate as they might be put their publicity as risk. 19 Shown in overseas experiences, legislative intervention is not an easy solution to protect copyright; ISPs generally oppose the idea of the terminate subscriber ’s service. It raises public concern that the freedom of expression will be curtailed, and enforcing copyright through litigation is likely to make the copyright owner unpopular. Furthermore, to fulfill the requirement of notifying the user or suspending internet service would inevitably increase the cost of ISP and it would finally be passed to internet users. Recently, two ISPs filed a judicial review regards to the act. As Charles Dunstone, the chairman of Talk Talk, put it “There is no need to pursue this letter -sending and disconnection policy, when it [the music industry and other copyright owners] can just individually prosecute people who have violated copyright rules.”20 13
S.124A Communication Act 2003 S.124H Communication Act 2003. 15 http://www.guardian.co.uk/uk/2010/apr/08/internet-piracy-bill 16 http://www.guardian.co.uk/technology/2010/mar/25/digital-economy-bill-commons 17 13 NO. 7 J. Internet L. 3 18 13 NO. 7 J. Internet L. 3 19 13 NO. 7 J. Internet L. 3 at p.4. 14
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http://www.telegraph.co.uk/technology/news/7878680/Digital-Economy-Act-TalkTalk-and-BT-mount legal-challenge.html
The Future
Legislative intervention is a dominant trend: France, Italy, UK and US has passed legislation, including the implementation of gradual response system and requires the ISP to suspend internet service. Ian Roberson contented that the recording industry is likely to press the government for legislative intervention to further protect their copyrights.21 Anita Cade commented that the recording industry is likely to treat ISPs as gatekeepers for internet copyright infringement. It is not a good policy decision, as indicated earlier, to hold ISPs as a gatekeeper. The Recording industry as the copyright owner should bear the cost and the responsibility of policing the internet infringement, otherwise every internet user would bear the cost of enforcing the copyright of a third party. Sabiene Heindl contented that mandated code of conduct and legislative intervention is the only way forward, 22 which I am not persuaded. I am of the opinion that legislation will be one of the ways to clarify the position of the parties involving in the infringement, but it’s not the only way to curtail infringing activities. Any legislative intervention to shift the burden of policing the internet to ISP is unadvisable and it makes the entertainment industry over protected. Legal Download
I am not persuaded by Sabiene Heindl’s view that legislation is the only way out. It is suggested that the entertainment industry should revise their business model and to convert infringing users to paid users. Legal download is increasingly popular in recent years, after the rise of Apple’s iTunes store, a successful business model that charging only 99cents for music or video. It is suggested that legal downloading service is the most logical steps to legalize infringement23, yet the industry shall promote the desirability of switching to legal download. My view is in line with the R, Ong that legal download is an efficient way of enjoying creativity and it could secure income for copyright holders and creators. Adapting old copyright law concept to the new technologies is a wrong direction, the way of thinking should be how to collect royalty fees when the works had been reproduced, not to control the download and reproduction of the works. Conclusion
Respecting individual creation is a fancy slogan to justify better copyright protection. It would be deeply unjust if internet users have to share the cost of enforcing some deep-pocket copyright owners’ right. Legislation would over-protection of copyrights, 21
Entertainment Law review June 2010 155 Digital Millennium Copyright Act 1998(US) ss201-203, codified as 17 US 512c 23 R, Ong, The war against P2P: Has it gone too far? Int J. Intellectual Property Management Vo1 2 No.1 2008 at p37. 22
and it is unnecessary to reinterpret or amend the law. I concur with the iiNet judgment that failure to stop infringement does not necessitate a finding of authorization and this reasoning should not be treated as an invitation to facilitate infringement.
