Intellectual Property Liability of Consumers, Facilitators and Intermediaries:The Position in Australia and New Zealand

Intellectual Property Liability of Consumers, Facilitators and Intermediaries: The Position in Australia and New Zealand
Graeme W. Austin

ISBN 978-90-411-4126-2
2012 Kluwer Law International BV, The Netherlands

In Australia and New Zealand, secondary liability issues have provoked different institutional responses. The leading judicial authority in Australia is the April 2012 decision of the High Court of Australia in Roadshow Films Pty Ltd v. iiNet Ltd.1 The High Court upheld a decision of the Full Federal Court2 in which a majority of the court decided that an Internet Service Provider (ISP) was not secondarily liable for ‘authorizing’ copyright in-
fringement due to its subscribers’ use of the ‘BitTorrent’ peer-to-peer system. The Australian High Court refused to adapt the concept of ‘authorization’ to the technological and legal challenges distilled by these distribution platforms and their facilitation by ISPs, strongly suggesting that the appropriate response should be legislative (and, necessarily, political), rather than judicial. New Zealand regulators have already taken this step.