A tort law framework for copyright authorisation

The law relating to authorisation liability for copyright infringement in Australia is unclear and unruly. As courts attempt to extend the law to reach new and disruptive intermediaries online, concepts designed to limit the scope of liability to only those at fault - such as the requirement that a person have the 'power to prevent' infringement - have begun to lose their meaning. Further, copyright owners seek measures from intermediaries that go well beyond the remedies available at law - they want users disconnected from the internet, websites blocked, and content filtered. These measures can have serious ramifications for the ways in which individuals are able to engage online, including for purposes of self-expression, community building, and creativity. In this thesis, I argue that the problems with copyright authorisation can be addressed using a tort law framework. I draw specifically from negligence law's focus on personal responsibility and its principles of causation to argue that intermediaries should only be under a duty to take reasonable steps to prevent acts of primary infringement where they have causally contributed to the risk of infringement or where they have real and actual control over the primary infringers and their actions. Concepts of fault, responsibility, causal contribution, risk and control are analysed in the context of negligence cases dealing with the duty to rescue and the duty to control third parties to prevent harm to another. I argue that this approach is more principled, and therefore more robust, than simply relying on the terms 'sanction, approve, countenance' to find authorisation liability under copyright law. I also argue that a negligence framework provides greater flexibility to consider how copyright regulation impacts upon the interests of users in the online environment.