On Sunday 4 March, I attended the stakeholders’ forum at the 11th round of the Trans-Pacific Negotiations in Melbourne.

I am particularly interested in the intellectual property chapter given my involvement in landmark copyright litigation in Australia. The leaked US proposals suggest that the USTR are negotiating for:

  • a legal regime of ISP liability beyond the DMCA standards (art. 16.3)
  • legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; (art. 16.3.b.vi.A)
  • requiring identifying internet users for any ISP, going beyond U.S. case law (art. 16.3.b.xi)

It is challenging to write about the TPP as we are working off a leaked text that is now a year old.  For the full text of the leaked US IP chapter proposals from February 2011 see: http://keionline.org/node/1091

I am a senior associate at Herbert Geer Lawyers in Melbourne.  Our team has successfully defended an Australian ISP, iiNet in the Federal Court and Full Federal Court against a copyright authorisation action brought by 34 Hollywood and Australian film and television studios, representing the major motion picture studios in Australia and the United States.

The Australian Federation Against Copyright Theft (AFACT) has been prominent in the conduct of the claim on the studios’ behalf.  However, technically AFACT is not a party to the proceeding.  Cables released by Wikileaks revealed that “despite the lead role of AFACT and the inclusion of Australian companies Roadshow and Seven, this is an MPAA/American studios production.”  See: http://bit.ly/wvwjIZ

The High Court of Australia heard the studios’ appeal of the Full Federal Court’s judgment on 30 November to 2 December 2011, last year.  A decision has yet to be handed down.

The High Court was asked to consider whether an ISP can be held liable for authorising copyright infringements committed by its users, who were alleged to have downloaded films and TV programs using the BitTorrent protocol, in a manner which infringes copyright. The studios’ case travels well beyond any decided case in Australia.

Underlying the studios’ submissions, is that they wanted iiNet to have a system in which warnings only played a role as the first step to suspension and termination of subscribers’ accounts.

The case has significant ramifications for the regulation of the internet in Australia and is likely to influence the ongoing and contentious international debates about the responsibility of ISPs towards copyright owners in the context of online copyright infringement.

For more information on this litigation, see the High Court’s webpage on the case which includes copies of the parties’ written submissions and transcripts of the hearing: http://www.hcourt.gov.au/cases/case-s288/2011 And watch this space for further details once the High Court publishes its much-awaited decision.

Leanne O’Donnell is a Senior Associate at Herbert Geer Lawyers, lo’donnell@herbertgeer.com.au.  Twitter: @MsLods