Kylie M. Pappalardo

Duty and Control in Intermediary Copyright Liability: An Australian Perspective

This chapter uses a negligence law framework to consider the liability of online intermediaries, such as ISPs, for copyright infringement by their users. It examines negligence cases which ask whether a defendant has a duty to act to stop a third party from harming a plaintiff, and argues that these cases provide a more coherent conception of “control” than the notion of “power to prevent” that currently exists in copyright authorisation case law. This chapter argues that “power to prevent” in sections 36(1A)(a) and 101(1A)(a) of the Copyright Act 1968 is too easily established, particularly when conflated with an assessment of “reasonable steps” in paragraph (c) of those sections. This chapter proposes that an intermediary’s power to prevent infringement must be a real and actual power over the infringing user and that this power is relevant to whether the intermediary has a duty to act to prevent infringement. By contrast, reasonable steps taken to prevent infringement are not relevant until after a duty is established. The judgment of Justices Gummow and Hayne in the High Court decision of Roadshow Films Pty Ltd v iiNet Limited [2012] is used to demonstrate these claims.

Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age

Online publication allows a work to be published simultaneously throughout the world to every country with Internet access. While it is certainly advantageous for the dissemination and impact of information and creative works, first publication of copyright works over the internet presents unique challenges. In particular, it brings to the fore the gaps in the Berne Convention’s country of origin provisions. In Kernel Records v Mosley, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in §101 of the U.S. Copyright Act, subjecting the work to registration formality under §411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Moberg v 33T LLC. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. While a clearer consensus on what amounts to “simultaneous publication” in the digital age may be needed at the international level, this article proposes a pragmatic way forward, i.e. resolution at the national level through statutory interpretation by the courts in a way which reconciles the goals of the Berne Convention with the practical requirements of domestic law.

A tort law framework for copyright authorisation

This thesis considers whether, and in what circumstances, internet services providers should be held liable when internet users download and share copyright infringing film and music files. The research draws from the law’s focus on personal responsibility to argue that ISPs should only be under a duty to take steps to prevent infringement where they have created the risk of infringement or where they have significant control over the primary infringers and their actions. Concepts of fault, responsibility, causation and control are analysed in the context of copyright and negligence cases to provide a robust analytical framework for determining copyright liability in the online environment.

The ‘I BELONG IN THE LLB’ Program: Animation and promoting law student well-being

This article argues that the growing body of empirical evidence on law students’ high levels of psychological distress creates an imperative for curricular and extra-curricular strategies to address this issue. We highlight recent initiatives at QUT Law School designed to support law student well-being that are informed by insights from positive psychology. In particular, we explain our use of animation, which is an engaging medium to promote students’ appreciation of the importance of psychological well-being in law school and beyond.

Copyright, Fair Use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term ‘copyrights’ in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968.