30 June, 2012

 

Legal News & Analysis – Asia Pacific – Singapore – Intellectual Property

 

Copyright infringement by way of sharing files using peer-to-peer networks is especially problematic for copyright owners. Unlike infringing content hosted on a website which is run by an Online Service Provider (“OSP”) and which

 

can be taken down, the content is shared directly between internet users through the internet connections which are provided by Internet Service Providers (“ISPs”). Copyright owners cannot trace and act against these internet users without the assistance of the ISPs, and even if the internet users are identified, it would be impractical to commence legal proceedings against each of them.
 
In the Australian High Court case of Roadshow Films Pty Ltd & Ors v iiNet Limited [2012] HCA 16, a group of copyright owners alleged that iiNet, a major ISP, was liable for authorising the infringement of its internet users because iiNet refusedto assist the copyright owners to prevent copyright infringement upon receiving infringement notices from the copyright owners. The copyright owners argued that iiNet had indirect power to prevent infringement by warning the allegedly infringing users
and by terminating their accounts. The copyright owners relied upon the notion of “countenancing” the infringement, which deals with acts or omissions which are less precise or explicit than those involved in “sanctioning” or “approving” the infringement.
 
Both the Federal Court of Australia and the Full Court of the Federal Court of Australia found in favour of iiNet. Upon appeal to the High Court, it was held that, while indifference or omission may in some cases lead to a finding of authorising infringement, the relationship between an ISP and its users were such that an ISP had no effective way of controlling its users’ activities. The High Court held that the infringement notices were not conclusive of infringement and they did not give iiNet sufficient basis to act. Further, the court found that iiNet was not obliged to monitor its users or to conduct its own investigations.
 
In Singapore, there has not been a  case where an ISP has been sued for authorising the infringements of their users. The 2011 Singapore Court of Appeal decision in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2011] 1 SLR 830 dealt only with a dispute involving an OSP which allegedly authorised the infringements of users of its website. The Australian High Court decision will be relevant in future disputes involving ISPs as the Singapore Court of Appeal had previously made express reference to Australian decisions when discerning the scope of liability for authorising infringement in Singapore.
 

 

For further information, please contact:

 

Tiong Hou Yuen, ATMD Bird & Bird

houyuen.tiong@twobirds.com

 

 

Leave a Reply

You must be logged in to post a comment.