Posted October 06, 2018 09:07:50 When you download a movie online from Netflix, Amazon or a similar streaming service, you’re agreeing to abide by copyright laws.
But if you’re an Australian citizen, you can be held liable for copyright infringement on the basis of a single Internet address or domain name.
These are the details that copyright holders in Australia have been trying to stamp out for more than a decade, but until recently they’ve been unable to do so.
They’ve also been unable, and are unlikely to ever be able to do, because copyright law does not allow them to.
That’s because the copyright owners can’t obtain a court order for an IP address, domain name or any other part of the internet.
Instead, the court will simply issue an order for the owner of the IP address or name to pay a fine.
The process takes a few weeks and can be lengthy.
In the meantime, the infringer is liable for the entire amount of money owed to the copyright holder.
“There’s a long, long history of courts saying, ‘Look, there’s nothing you can do about it’,” says Peter O’Brien, an associate professor of copyright law at the University of Sydney and the director of the Institute of Technology Studies at the Australian National University.
“So the only way to really change that is for the courts to change the law.”
This process of court orders is known as a “copyright infringement notice” (CIL) and can take anywhere from one to three weeks to process.
But in the meantime the infringers are left with a gaping hole in their finances.
A recent study found that over half of copyright infringers who had received a CIL had not been paid in more than five years.
If the copyright holders cannot get an order to pay the money owed, it will effectively be their fault.
“We have seen that courts have found the infringed parties liable for a large portion of the infringement,” O’Connor says.
“But the court also finds the infringe has had the capacity to act and so there’s no fault there.”
So what happens if the infringor cannot pay?
What if they fail to pay?
Copyright holders are able to take action against the infringeree through an administrative process known as “administrative remedies”.
These are often known as injunctions, but they also can include fines and other penalties.
A simple administrative process involves the court issuing an order, which the infringee can appeal to a higher court.
This can involve a process of notice and hearing, and the court may make a decision on the matter within a few days.
The infringer has four days to respond to the order.
If they don’t, the matter will go to a lower court, which is known in copyright law as a tribunal.
It then makes a decision about the case, based on the advice of the relevant parties and the relevant legislation.
The final decision on whether the case is a success or failure lies with the tribunal.
“The final decision of the tribunal is usually the one that is enforced by the court, whether or not there’s an order made,” O.J. Pekar, a partner at law firm Withers & Pekkar, says.
The outcome of a court proceeding is often considered “fair” because it takes into account the interests of the infringing parties.
However, this is not always the case.
“It’s a very subjective decision,” O.’
Connor says, referring to the way that the court is bound by the decision of a lower tribunal.
Sometimes an administrative remedy is “unfair” or “arbitrary”, because the infringant can’t afford to pay and the infringement is not in the best interests of their business.
If a court does not enforce an administrative remedies order, the copyright owner is liable.
“In most cases, there are very limited alternatives available to the infringar, such as a counter-notice,” Ojibway says.
In some cases, the courts have also granted injunctions that can be enforced in a variety of ways, including a preliminary injunction and a preliminary judgement.
In other cases, such an injunction can be applied in a later proceeding, rather than in the present one.
In both cases, however, the decision to enforce an injunction is up to the court.
“If there’s a dispute about whether an injunction should be issued, it’s the case that the judge is required to make that decision,” says Pekmar.
“He’s not going to say, ‘Let’s go out and apply an injunction’.” A number of copyright holders are fighting the process of administrative remedies and have taken the case to the Federal Court of Australia.
“When the Federal Government came in, the Federal Circuit Court said they had an obligation to take on the cases and that it was in the public interest for the federal courts to take this on,” Ochs