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.