Author Archives: ellenbroad

Australia hosts secret trade agreement negotiations this week in Melbourne

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This Thursday, behind closed doors in Melbourne, representatives from nine countries including Australia will take up discussions once again on an ambitious, comprehensive trade agreement for the Asia-Pacific region. Negotiators from Brunei Darussalam, Chile, Vietnam, Malaysia, the United States, Australia, New Zealand, Peru and Singapore will pore over draft treaty text of the Trans-Pacific Partnership Agreement, an agreement to cover all aspects of commercial relations between the countries, from competition and customs to e-commerce, rules of origin and labor, from textiles and apparel to telecommunications and intellectual property.

The Trans-Pacific Partnership Agreement (TPP) is being touted as a 21st century model for regional trade integration.The intellectual property chapter for the TPP will lay out lengthy, highly detailed, coverage of all aspects of IP enforcement and protection  between the nine countries. It will cover the terms of access to and use of copyright works. It will prescribe limited circumstances in which consumers are permitted to circumvent digital locks to access copyright work. It will also consider the scope of criminal penalties and statutory damages for acts of copyright infringement.

Because all of the negotiating texts are secret, it’s hard to say exactly how the IP provisions of the TPP are being drafted, and what the end agreement will look like. There has been one leaked draft of the IP chapter since negotiations began and if legitimate, indicates that there’s a lot to be anxious about.

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High Court to copyright industries: why not lower your prices?

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Introducing Ellen Broad:

Hello Troppodillians.  As some of you know, I am the patron of the Australian Digital Alliance which, broadly speaking, represents users of copyright protected products. Its members include Google, Yahoo!, each of the national cultural institutions, libraries, schools, universities and individuals. It is one of the few organised voices trying to make the views and interests of copyright users known to the community and to government.

Ellen Broad is the Alliance’s copyright law and policy adviser and she’s energetically embracing her role. She’s worked on both sides of the copyright fence, with a background in creative writing and publishing before moving to Canberra and working for the National Film & Sound Archive and the National Library of Australia. She is in short, doing a great job. Given that she updates members on various IP issues of note, I invited her to post any items of more general interest on Troppo. And this is her first post.

Nicholas Gruen

“The basic conundrum for the copyright holder”, Justice Hayne commented on day 1 of the iiNet High Court Hearing, “is that…the prevention of unauthorised sharing of copyright works ultimately depends upon the individual choice of the user of the Net.” All that an ISP can do, he observed, to have an effect on the individual user’s choice, is switch off.

The dispute between iiNet and AFACT in the High Court is ultimately over who should bear the burden of policing copyright infringement by users on the internet. It’s expensive and ineffective to take action against individuals implicated in unauthorised file sharing, and so the content industries have worked hard to shift the burden of preventing copyright infringement to ISPs. To succeed in this  particular case, AFACT needs to show that in failing to take any steps at all against identified copyright infringements by users of their services, iiNet effectively authorised the continued uploading of copyright works on their watch.

This would be a significant expansion of the doctrine of authorisation in Australian copyright law, and AFACT have done their best to reframe it in terms of negligence on the part of ISPs  – that ISPs had a “duty of care” or “obligation to prevent” copyright infringement.

Whether the Australian copyright legislation confers a responsibility on ISPs to take positive steps to prevent copyright infringement is a question for the High Court to answer. Still, any discussion of a purported duty of care owed by ISPs begs the question: to what extent should ISPs bear the burden for business choices made by the content industries?

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