Archive for October 14th, 2008

Copyright liability for hosting material posted by others

Tuesday, October 14th, 2008

Section 116AE of the Copyright Act 1968 (Category C activity) provides for a limitation on the liability of hosting services for material posted by others.  Think, for example, of YouTube or those websites that ISPs provide their subscribers. The broad conditions for the protection to apply are set out in s 116AH. Copyright Regulations reg. 20A to 20X provide more detailed requirements, including the notice and take down procedures.

Apart from the failed attempts of pretty much naked infringers to rely on these provisions, we don’t have much case law on how these provisions apply.  See Cooper and KaZaa.

The provision is closely modelled on §512(c) of the US Copyright Act (putting to one side the problematical “carriage service provider” criterion).

Therefore, you might find a US case, Io v Veoh, in which the host successfully relied on the defence worthwhile reading.  

Prof. Goldman has an excellent discussion here.

One of Prof. Goldman’s points is the problem of the relationship of the ‘safe harbours’ to liability for secondary infringement (the nearest analog in Australia being liability for authorising copyright infringement).

That could be an issue here too on the Moorhouse principles, but it has always seemed to me that, before this safe harbour was introduced, the web host had an even more direct exposure for direct infringement by reproduction and, possibly, communication. I wonder if the US Second Circuit’s approach in Cartoon Network v Cablevision (Aug. 4) has potential here?