Update from Australia: ISPs and newspaper aggregators

iiNet case

• legal proceedings• negotiations & advocacy outside case

Legal proceedings

• film companies v iiNet (2nd biggest ISP)• 1st instance = iiNet• full Federal Court = iiNet (2 to 1 judges)• High Court: special leave hearing August 2011

Legal issues

• authorisation of infringements by subscribers• safe harbour: limitation of remedies• mere provision of facilities• Full Court: film companies could have won on

different facts• next step: depends if High Court grants leave

to appeal

Negotiation & advocacy

• negotiation & advocacy parallel to case• acknowledged: case doesn’t solve all issues• Australian Content Industry Group (ACIG):– CAL– Publishers– Games– Software– music

What does ACIG want?• industry code• discussions with ISP representatives• issues include:– who sends infringement notice?– sanctions– self-regulation or government– who bears costs

• government involvement

Fairfax v LexisNexis

• Fairfax publishes Australian Financial Review• LexisNexis ABIX service: daily digest– AFR headlines + abstracts of articles

Issues

• headlines protected by copyright? • headline + article = joint authorship?• fair dealing?

Headlines = copyright?

• no – for headlines in this case• possible for other headlines– need author

• influence of IceTV case

Headline + article = work?

• headline + article = joint authorship? – no – authors working separately– could be joint work on other facts– but headline not ‘substantial part’ of headline +

article

Fair dealing

• LexisNexis use = fair dealing• purpose = reporting news• headline = ‘sufficient acknowledgement’

Response to case

• no appeal by Fairfax• new case on different facts risky: – fair dealing finding