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Proposing an amendment of the Copyright Act 1968 in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd (see below), which found that ISPs are not liable for authorising the infringements of subscribers.

Sections 36(1) and 101(1) establish the exclusive right to ‘authorise’ the doing, in Australia, of any act comprised in the copyright. Whether an intermediary has ‘authorised’ an act of infringement is a question of fact assessed in all of the circumstances. ‘Authorise’ is defined as ‘sanction’, ‘approve’ or ‘countenance’ (UNSW v Moorhouse 1975 HCA 26), and assessed with specific regard to: (a) the extent (if any) of the person’s power to prevent the doing of the act concerned; (b) the nature of any relationship existing between the person and the person who did the act concerned (c) 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. (Sections 36(1A), 101(1A)). ‘Mere conduit’ exceptions exists in...

Clause 91(1) of Schedule 5 of the Broadcasting Services Act 1992 (Cth) provides a general limitation of liability for internet service providers and content hosts from Australian State and Territory laws for material hosted on behalf of another. On its face, Cl 91(1) appears to provide a strong immunity similar in effect to Section 230 of the US Communications Decency Act. The Federal clause renders any State or Territory legislation and any rule of common law or equity invalid to the extent that it: subjects internet hosts or ISPs to criminal or civil liability for hosting or transmitting content where the host is not aware of the nature of the content; or requires an internet host or ISP to monitor, make inquiries about, or keep records of, content hosted or transmitted. In practice, Cl 91(1) has not been greatly...

Trade Agreement Implementation Act 2004 (Cth) Sch 9 & Copyright Legislation Amendment Act 2004 (Cth) Sch 1 (Safe Harbours) Safe harbours for intermediaries were introduced as part of the Australia - United States Free Trade Agreement (Ch 17) by the US Free Trade Agreement Implementation Act 2004 (Cth) Sch 9 and amended by the Copyright Legislation Amendment Act 2004 (Cth) Sch 1. The safe harbours largely follow the structure of 17 USC 512, although they have been substantially redrafted. The safe harbours limit the liability for intermediaries to injunctive relief for transmission, caching, hosting, and indexing activities (Section 116AG). The conditions imposed on intermediaries seeking to rely on the safe harbours include a reasonably implemented termination policy for repeat infringers and a notice and takedown...