White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
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Email: wcl@computerlaw.com.au Internet: http://www.computerlaw.com.au

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White SW Computer Law Intellectual Property, Information Technology & Telecommunications Newsletter - May 1999

The Government introduced the Copyright Amendment (Digital Agenda) Bill 1999 in response to the challenge to the traditional approach to copyright arising from, amongst other things, the fast increasing use of the Internet.

We will be reviewing the issues covered by this Bill in this and subsequent newsletters.

One important issue that the Draft Bill deals with is that telecommunication carriers and Internet service providers (ISPs) will not be liable for copyright infringements on their customers' web sites merely because the infringements occurred on the facilities of the telecommunication carrier or ISP.

There is also clarification of the circumstances under which the authorisation of an infringement occurs so that telecommunication carriers and ISPs have a clear understanding of their risk in that regard.

The law in Australia is uncertain in this area at the moment and these provisions will ensure that telecommunication carriers and ISPs in Australia enjoy similar protection to that available in other jurisdictions.

Damages For Breach Of Contract And Misleading And Deceptive Conduct

A claim for damages for breach of contract and misleading and deceptive conduct was made by Pioneer Electronics Australia P/L (Pioneer) in the matter Pioneer Electronics Australia P/L v Edge Technology P/L as a result of Edge allegedly selling CD-Rom drives separately rather than in PCs or as part of multimedia kits and allegedly making late payments.

Edge filed a defence and a counterclaim in which it claimed that Pioneer had allegedly engaged in misleading and deceptive conduct causing Edge to suffer loss and damage.

Pioneer sought to have Edge's cross claim struck out.

The Court found that Edge had neither provided Pioneer with sufficient details as to which representations made by Pioneer had been misleading and deceptive nor described the circumstances which gave the representations their misleading and deceptive character.

Edge was also required to give details in regard to the alternative contracts for supply that it would have entered into, had it not contracted with Pioneer.

During pre-contractual negotiations and in post contract dealings, it is prudent to keep detailed notes in regard to any meetings or other communications with your suppliers or customers, including such details as the persons present, the matters discussed and the information supplied by all parties.

Such a diary of events will make the job of reconstructing the path of contractual negotiations or breaches of contract much easier and may encourage the Court to favour your version of the events over a diary of events, not backed up by written records.

Web Site Development And Government Censorship

Does your business name have lurid connotations?

Are you contracted to develop multimedia material advertising products with “saucy” names or products such as underwear, sex aids or contraceptive devices? Do you have views, which may be considered offensive? If you answer is yes to these questions or you can see similar issues for your business,

The Broadcasting Services Amendment (Online Services) Bill, which has now been passed by the Senate, may have a significant impact the use of your multimedia works, which are produced to be incorporated into web sites.

While most people would support all action by the Government to eliminate Internet content such as child pornography, paedophilia, bestiality or non-consensual sexual acts, if the method chosen to beliminate such material is too draconian, non-offensive and other opinionated material may also be blocked.

Under the bill any person may make a complaint to the ABA, which must investigate all complaints. If it is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the relevant Internet Service Provider a written notice (a final take-down notice) directing the Internet content host not to host the prohibited content.

A scheme for interim notices also applies.

The material must be removed within twenty four (24) hours.

Prohibited content is material which:

  • has been or would be classified RC (Refused Classification) or X by the Classification Board; or
  • has been classified R by the Classification Board and access to the content is not subject to a restricted access system.

The fines for not complying with a notice or committing other breaches under the act may be up to approximately $5,000 per day for individuals or approximately $25,000 for corporations per day.

There is some debate as to who should be responsible for Internet content.

There are arguments that the responsibility should rest either with the ISP or the actual publisher or author.

It is clear that the expense and inconvenience involved in complying with this legislation will be substantial. In our view it will also be possible for people with an opinionated view on a subject to cause substantial expense to Internet Service Providers and other parties.

Accordingly, businesses should consider their legal liability under existing and new contracts should the proposed Broadcasting Services Amendment (Online Services) Bill be enacted.

It would be prudent to review any works that have been produced in the past for use on the Internet to determine whether there is likely to be any material which will be required to be removed. If material is deemed to be unsuitable for Internet usage, issues of liability and damages arise.

When a claim of copyright infringement is made, to what extent does the applicant have to prove its ownership of the copyright in question? In the matter of Commonwealth of Australia v Oceantalk Australia Pty Ltd and Anor, the Commonwealth alleged that its copyright in certain electronic nautical charts had been infringed and the respondents requested particulars about the Commonwealth's alleged ownership of the copyright such as the dates the charts were made, the author of the charts and the relationship between the author and the Commonwealth.

The Commonwealth sought to rely on provisions of the Copyright Act 1968 which provide that the copyright of a work made by or under the direction or control of the Commonwealth is owned by the Commonwealth and claimed that they merely had to show that the works in question had been made by it or under its direction or control.

The Court held that despite these provisions, the Commonwealth still had to prove details such as whether the charts were original or merely a copy of a pre-existing works and the date the charts were created to show that the copyright was owned by the Commonwealth and had not lapsed.

The Court ordered the Commonwealth to provide the respondents with details of each chart of which alleged copyright infringement took place and details of the production of these charts such as how and by whom they were made and on what basis the Commonwealth claims copyright ownership.

When making a claim of copyright infringement against another party, it is important that you have sufficient evidence of your ownership of the copyright and that copyright exists.

It is an offence under the Copyright Act to make a false allegation of copyright infringement and the Court may order costs and damages to the other party if you cannot support your claim of copyright ownership.

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