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Authorisation Of Infringement Indirect Infringement ‘Paracopyright’ Notes

Law Notes > Intellectual Property 1 (Copyright) Notes

This is an extract of our Authorisation Of Infringement Indirect Infringement ‘Paracopyright’ document, which we sell as part of our Intellectual Property 1 (Copyright) Notes collection written by the top tier of University Of New South Wales students.

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Authorisation of Infringement; Indirect Infringement; 'Paracopyright' Authorise the doing of an act comprised in the copyright


Sometimes the transaction costs incurred in pursuing individual infringers makes it cost prohibitive - authorisation provisions direct the energies of third parties to assist with the enforcement of copyright where they are involved in the infringement


But since taking this role increases their costs and complicates their relations with customers, they are often very reluctant to take on a high level of involvement in investigating and pursuing alleged infringers on behalf of copyright owners. o

But cf. P2P providers who have developed commercial models that capitalise on the legal difficulties of pursuing infringers in an online environment

Copyright Act S 13(2) Acts comprised in the copyright; s 36(1A) Infringement by doing acts comprised in the copyright; s 101(1A) Infringement by doing acts comprised in the copyright

University of New South Wales v Moorhouse (1975) 133 CLR 1 Gibbs CJ summarized some key principles in the law of authorization:


'authorize' has in similar judicial contexts been held to have its dictionary meaning of 'sanction, approve, countenance'. It can also mean, and has been treated as synonymous with, 'permit'.


A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it (AC v APRA) o

Express or formal permission or sanction, or active conduct indicating approval isn't essential to constitute authorisation


Inactivity or indifference through acts of (/c)omission may reach a degree from which an authorization may be inferred (AC v APRA)


But the word authorize connotes a mental element and it can't be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be doneIndifference or omission is permission where the party charged, inter alia, 'knows or has reason to anticipate or suspect that the particular act of infringement 'will or may be done (Knox CJ, dissent, AC v

APRA) ? but this may be too widely expressed Gibbs CJ expressed a refine version of the principle:


"It seems to me...that a person who has under his control the means by which an infringement of copyright may be committed - such as a photocopying machine - and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use" o

The person needn't have knowledge or reason to suspect that a particular act of infringement is likely to be done - it is sufficient if there is knowledge or reason to suspect that any one of a number of particular acts is likely to be done

Authorisation: Libraries: Some sections comment on the position of libraries: S 39A - Infringing copies made on machines installed in libraries and archives s 104B - Infringing copies made on machines installed in libraries and archives Authorisation: Performances Copyright Act: S 39 - Infringement by permitting place of public entertainment to be used for performance of work Australasian Performing Right Association Ltd v Metro on George Pty Ltd [2004] FCA 1123 Facts: Metro on George (MOG) held regular live performances of music. APRA granted license wrt the whole of its repertoire on a 'blanket' basis and had a licenses also for different circumstances. MOG had a venue license for a number of years but in 2002 elected not to renew it and instead rely on contractual clauses shifting the responsibility for copyright licensing to the venue hirer.

Bennett J summarized the position of the respondent:Metro doesn't arrange/provide performances but just hires it out to TPs to promote/arrange their own live artists or dance parties. If the theatre isn't hired out it doesn't open for businessMetro doesn't exercise any judgment in who it hires out its venue to and has no control over the performancesMetro doesn't authorize/permit the performance of any copyright material at MOG

Approval, sanctioning or countenancing The Metro Contract states that they don't authorize/permit any particular performance, containing copyright material or otherwise, and that the hirer warrants they will ensure all performances comply with the Act. They argued that this brought them within s 36(1A)(c) being reasonable steps to prevent/avoid the doing of the act, being the act comprised in the copyright.

? The inclusion of the warranty was a reasonable step to take, which if implemented by the hirer would have prevented an unlicensed performance o

BUT s 36(1A)(c) doesn't address steps to prevent/avoid infringement generally - it addresses steps to prevent or avoid the doing of the act itself, that is, the act comprised in the copyright in a work.


Metro didn't take steps to avoid the performance

? Also, The inclusion of the warranty in the contract wasn't, in most cases, implemented and didn't result in the hirer obtaining an APRA license. o

APRA informed Metro that unlicensed performances took place and there was no evidence that they took any action.They didn't inquire whether licenses were obtained or ensure that they had. They took the view that they didn't have to do anything furtherThe warrant amounted to more than a warning since it notified the hirers of their obligations but it was insufficient to exonerate them

Her honour rejected a submission that knowledge/suspicion of particular acts of infringement were required as being contrary to Moorhouse. After being sent a letter by APRA, in this case, they would have at least had a reason to suspect that works in APRA's repertoire would be performed, even if there was no knowledge of a particular work.

It was also submitted that it would be an extension of principle to find them liable in the absence of identifying particular acts for which they were liable for.
? But in Jain it was held that a studied/deliberate course of action ignoring APRA's rights and allowing a situation to develop/continue in which the alleged infringer must have known it was likely that APRA's music would be played without any license, where it was within power to control what was occurring, was enough to amount to authorization of infringement

? Here Metro didn't establish it wasn't aware or had no RG for suspecting that performances would be an infringement of copyright - letters from APRA's solicitors made clear that APRA's contention was that unlicensed performances were taking place at MOG and that they constituted infringement of copyright o

At least from this time Metro was on notice that, despite the clause in the contract, hirers weren't taking APRA licenses and the clause was being ignored


And prior to this letter Metro was either aware of, or was indifferent to, the occurrence of unlicensed performances at MOGThe failure to make inquiries of the hirer in the face of APRA's assertions can be described as a wilful disregard of whether the performance of works which it knew or ought reasonable to have known would include works within APRA's copyright were performed with APRA's authorisation or not"And "a deliberate choice not to inquire in such circumstances, may enable a further finding, since it may suggest a mind in which real suspicion resided" and a failure to put such a question operates to that persons peril (Golden Editions v Polygram)

Indirect Infringement

* Indirect infringement relates to facilitating primary infringing activities or dealing in infringing copies of works. Provisions include: S 39: Providing a place of public entertainment to be used for infringing performances s 37, 102: Unauthorised importation of works s 38, 103: Commercial dealing with infringing works


An express or implied license is required from the copyright owner o

Under ss 37-38 the onus of proving the absence of the license of the owner of the copyright lies on the party asserting infringement. The reason is that the absence of such license constitutes an element of the wrong of infringement under the section (Avel v Multicoin).The effect of these sections are to deem importers to have bene 'makers' of the infringing article in AU (Polo/Lauren v Ziliani)Liability also requires that the defendant had AOCK of the wrong - this isn't a 'reasonable man' test but a court can infer knowledge on the part of a particular person on the assumption that they have the ordinary understanding expected of persons in his line of business


"a court is entitled to approach the matter in two stages: o

Where opportunities for knowledge on the part of the particular person are proved and there is nothing to indicate that there are obstacles to the particular person acquiring the relevant knowledge, there is some evidence from which the court can conclude that such a person has the knowledge.


However, this conclusion may be easily overturned by denial on his part of the knowledge which the court accepts, or by a demonstration that he is properly excused from giving evidence of his actual knowledge"


* Concerns over widespread piracy led owners to adopt 'self-help' mechanisms to protect digital content and control the means of accessing works. In this vein Art 1113 of the WIPO Copyright Treaty (960) required nation states to adopt laws to protect the use of technological tools that make it harder to make authorized copies of files. These reforms created new prohibitions entirely separate from the exclusive rights. o

These new provisions came into force in AU as part of the Copyright Amendment (Digital Agenda Act)

Stevens v Sony (2005)

* Though many owners adopted various forms of protection to make it difficult to access/share files on the user's terms, in Stevens v Kabushiki Kaisha Sony Entertainment the HC acknowledged that not all such efforts are 'technological protection measures' (TPMs) under AU law since they go beyond the 'balance' between rights of owners and users as envisioned by parliament o

Facts: The case concerned the PSX which controlled the copying of games using an 'access code' (string of encrypted sectors of data). After the CD was inserted into the console and before the game was played, a Boot ROM chip in the PSX has to read a string of encrypted data.PSX were sold in different parts of the world and the format of consoles and the CD on which games were played varied. Different access codes for consoles/games were used in different regions. Legitimate games sourced from other regions and unauthorized copies couldn't be played on a console without the requisite regional access code

Mr Stevens sold unauthorized copies of PSX games and sold and installed 'mod chips' into the PSX consoles that provided the required access code to unlock games. o

Issue: Whether the technology used by Sony was a Technological Protection Measure

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