Don't walk the plank – the relationship between piracy and the doctrine of authorisation

The raid comes just one year after the four founding members of The Pirate Bay were sentenced in a Swedish District Court to a one year jail term and ordered to pay fines of 30 million Kronor (equivalent to approximately $4.5 million)². 

The court action against The Pirate Bay alleges the defendants were complicit in facilitating copyright infringement.  The appeal is set to be heard in the coming months.

The recent flurry of international police and judicial activity aimed at peer-to-peer related copyright infringement is part of a global trend³ of directing the enforcement of copyright infringement away from direct individual infringers and towards those who authorise, or are complicit in, facilitating copyright infringement on a larger scale. 

The equivalent provisions used to charge The Pirate Bay founders in Australia may be found in section 101(1) and (1A) of the Copyright Act 1968 (Cth), which relate to the authorisation of unlicensed copying of a copyright work.

For a person to have breached the authorisation laws, there only needs to be an actual act of copyright infringement, that was authorised by the person (i.e. a peer-to-peer protocol developer or torrent tracker). 

In assessing whether a person has authorised unlicensed copying of a copyright work, the Court will consider:

1. the extent, if any, of the authoriser’s power to prevent the doing of the act concerned;
   
   
2. the nature of any relationship existing between the authoriser and the person who did the act concerned; and
   
   
3. whether the authoriser took any other reasonable steps to prevent or avoid the doing of the act, including whether the authoriser complied with any relevant industry codes of practice⁴.

The laws relating to authorisation are particularly pertinent for software developers, internet service providers, web designers⁵ and technology developers generally.  Any person or company that produces a product that has the potential to cause duplication, replication or other copying of copyright works, or is involved in hosting or maintaining internet sites or services which may facilitate the unlicensed transfer of copyright material, must consider how the doctrine of authorisation could make them complicit in the act of copyright infringement.

If you have any queries please contact:
Senior Associate Wayne Zappia on 08 9288 6931 / wayne.zappia@lavanlegal.com.au or
Solicitor Jeremy Newman on 08 9288 6743 / jeremy.newman@lavanlegal.com.au.