Illegally downloading films to watch at home? Guess what, you can no longer hide behind your ISPs to avoid legal liability.
In a recent landmark ruling, some of Australia’s largest internet service providers (ISPs) were forced to provide Dallas Buyers Club LLC (Voltage Pictures) with the names and addresses of more than 4,700 of its service users who allegedly downloaded and/or shared the 2013 Oscar winning film Dallas Buyers Club on file sharing services including BitTorrent.
The ISPs – most notably iiNet, but also including Internode and Amnet Broadband and others – had previously refused a request to provide the information, claiming that Voltage Pictures had engaged in a practice iiNet’s chief regulatory officer called “speculative invoicing” ahead of the lawsuit. During the case, iiNet’s lawyers accused Voltage Pictures of using discovery letters to threaten those who had infringed its copyright into making settlements.
The judge who presided over the case is yet to determine the level of compensation Voltage Pictures can demand from individuals. He will also be approving the correspondence to be sent to the service users. His Honour further stipulated that a condition of the ruling was that the identities of the alleged ‘pirates’ remain confidential.
The decision to grant the order has already been described as landmark, and a huge step in the battle against global online piracy. The case is particularly interesting as it marks a much more aggressive stance on internet piracy and online copyright infringements by rights holders.
The case also raises an intricate legal matter – where two sets of rights come into direct conflict: the privacy rights of customers protected under Part 13 of the Telecommunications Act 1997 and rights holders’ exclusive copyrights under the Copyright Act 1967. However more on that in another blog.
Now that we know that there are enhanced legal avenues for copyright owners to identify and therefore take action against infringers, lets talk a little about online copyright infringement, piracy and how you can protect yourself and your business.
What is online copyright infringement and film piracy?
Online copyright is a term that refers to the protection of certain ‘works’ that are published on the internet. Some of the most common examples of copyright material includes films, music, art and literature such as e-books, blogs and website content. Copyright automatically vests in the author, upon creation of the works (unless the author is an employee or there is a written agreement to contrary). So, the very moment you upload your blog, your work is protected by copyright, assuming of course that it meets the relatively low threshold for copyright protection. More on that later.
Film piracy refers to the act of downloading, copying and distributing film without permission from the rights holder. With the rise of the digital age, there has been surge in film piracy because well, it’s just so easy for end users to download music and films from the internet. Using peer-to-peer sharing and streaming sites, like BitTorrent, is a form of film piracy and by using them you are violating the copyright of the rights holder. So, just because you can, doesn’t mean you should…or that it’s legal for you to do so!
Protecting your online collateral and respecting the copyright of others
In Australia, copyright is automatically protected under the Copyright Act 1967. Copyright protection is Australia-wide – and to some extent is also protected in overseas markets, where countries are parties to certain conventions and treaties that recognise copyright created in Australia. Copyright exists for a term of 70 years, post death of the author of the works. You don’t need to register copyright in Australia (despite what some less than desirable ‘copyright registration companies’ claim). In fact there is no official avenue to do so. As the owner of copyright, you have the exclusive benefits of being able to commercialise, licence, sell, reproduce and adapt your works, amongst other rights set out in the Copyright Act.
The rise of the digital age is wonderful for both innovation and competition. Start-ups, entrepreneurs and small businesses now have access to a global platform where they can sell, advertise and promote their business and compete directly with the top end of town. Unfortunately the flipside of this is that online collateral is more vulnerable to unauthorised use, and readily available content and images online can lull business owners into a false sense of security as to their right to use the online content or images as part of their own collateral. By the way, whether or not you know you are infringing copyright is no defence to liability for copyright infringement. I repeat, just because you can, doesn’t mean you should…or that it is legal for you to do so.
If you are sourcing online content and images, make sure that you are obtaining the content and images under licence or with the consent of the owner and make sure that your use is within the parameters of the licence or consent. There are plenty of royalty-free databases for images and online software programs that will allow you to easily check text or blog posts for possible plagiarism offences. If in doubt, seek advice before using third party material or, don’t use it – as I’ve mentioned, there are so many ways to use authorised material and to obtain a licence that there’s really no reason to take unnecessary risks. Remember, you work hard to create your original and unique material so respect that others do too and, if you want to use their content get the necessary consents and licences to do so.
On the flip side, you should also consider a monitoring system for your own brand and collateral as part of your overall online protection strategy. Online monitoring can include inspection of domain names, social media profiles and digitally published content such as blogs. Not only will this help to protect the integrity of your collateral from would-be infringers, but it can also mitigate your risk of infringing someone else’s content. If you suspect someone is infringing on your rights online, you can utilise various legal procedures such as ‘cease and desist’ letters or court proceedings to deter them. However, take care in doing so as you can attract liability if you make groundless threats. Save yourself a lot of stress, cost and risk by getting professional legal advice from a qualified intellectual property lawyer before you take any action against an alleged infringer. As I often say, you can’t get the law half right and worse still, if you get it really wrong you are going to be in a world of a hurt.
Safeguarding your intellectual property online (and avoiding liability for infringement) starts with developing a sensible, tailored strategy that considers a broad range of both commercial and legal factors to ensure that your business is fully compliant with, and protected by, the law. Copyright is but one legal basis for protecting your brands and IP. So avoid wasting time and money on trial and error or ad hoc generic processes that may or may not work for your business and get the right advice upfront, from a qualified legal professional who has the right skills and experience.
At Ethikate we are registered lawyers, trade marks attorneys and brand and IP protection specialists. We can assist you in developing and implementing a tailored brand and IP protection strategy that works for you and your business. Contact us today to find out more.