The two-year old copyright dispute between Australian ISP iiNet and the Australian Federation Against Copyright Theft (AFACT) will be heard in the High Court on 1-2 December 2011.

As discussed in my post of 23 February 2011, the Federal Court in 2009 and 2010 found that iiNet did not “authorise” alleged copyright infringing activities by its customers. In August 2011, the HCA granted AFACT the right to appeal against the decision of the Full Federal Court, on five grounds.

On 25 February 2011, the Commonwealth Attorney-General Robert McClelland addressed the Blue Sky Conference: Future Directions in Copyright Law. He indicated that his department may examine several copyright issues in the year ahead, including:

• examining the policy implications of the Full Federal Court’s decision in the AFACT v iiNet case (Roadshow Films Pty Ltd v iiNet Limited [2011] FCAFC 23);
• consulting on a proposal to broaden the definition of “carriage service provider”, which currently excludes entities that do not provide network access but provide online services (eg Google, Yahoo);
• inviting submissions on whether new exceptions under the Copyright Act 1968 (Cth) should be introduced to permit some circumvention of technological protection measures, such as for education purposes; and
• providing the Australian Law Reform Commission with a reference on copyright later in the year, which may include examining “some exceptions under our law in the context of the online environment and whether the correct balance exists”.

On Thursday, 24 February 2011, justices Emmett, Jagot and Nicholas will handed down the decision of the Full Federal Court of Australia in the appeal of Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 (aka AFACT v iiNet).

In general terms, this matter is about whether iiNet (an Internet service provider):

• authorized acts of copyright infringement by its customers who used file sharing networks,
• was liable for the actions of its customers, and
• the safe harbor provisions of the Copyright Act 1968 (Cth) protected iiNet.

At trial in late 2009, Cowdroy J found in favour of iiNet and dismissed the applicants’ claims with costs. In February 2010, the applicants appealed the trial decision to the Full Federal Court.

On Friday, 8 October 2010 the Supreme Court of Canada handed down three judgments which say that an accused person does not have an unrestricted right to consult with their lawyer during police questioning.

The SCC considered three separate cases in which the suspect asked, mid-interrogation, to consult with his lawyer again. Section 10 (b) of the Canadian Charter of Rights and Freedoms states that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” But a 6:3 majority of judges found that providing the accused with an initial phone call to a lawyer is sufficient to protect the person’s Charter right to counsel, unless and until something changes during police questioning to justify another phone call. The degree of change that will be needed remains an open question.

It may be that the average Canadian will have a sense that rights have been removed through these decisions. But the (false) impression that someone has a right to have a lawyer present during questioning might come from American TV shows that depict police issuing Miranda warnings to suspects. What the SCC is saying is that a right to counsel during interrogation has never existed under Canadian law.

I have yet to read each of the judgments in full. If you want to get a head-start, read R v Sinclair [2010] SCC 35, R v McCrimmon [2010] SCC 36, and R v Willier [2010] SCC 37.

The Globe and Mail and Toronto Star have articles on the SCC decisions.

On seeing photos from my admission, a friend Paul asked why the statue of Themis outside the Supreme Court in Brisbane has no blindfold. His question prompted me to do a little digging.

The Greek goddess Themis became one of the Oracles of Delphi on account of her ability to foresee the future. That led also to her being recognised as the goddess of divine justice. Themis is often depicted without a blindfolded because, capable of clear-sightedness and prophecy, she had no need to be blinded.

Justitia, Roman goddess of justice, is often depicted holding a sword and scales, but not always. And interestingly, she has been represented as “blind” only from about the end of the fifteenth century.

Themis at Law Courts, Brisbane

The Lady (of) Justice in the Western tradition sometimes wears a blindfold (perhaps more so in Europe, with the Roman influence on the development of many countries?) but more often she appears without one. She usually carries a sword and scales. The Lady is draped in flowing robes, is mature but not old, and is less frequently referred to as Themis. She symbolizes the fair and equal administration of the law, without corruption, avarice, prejudice, or favour.

The statue that appears outside the Law Courts complex in Brisbane is Themis. The Hon Paul de Jersey AC, Chief Justice of Queensland, gave a speech to the Brisbane Club (2001) titled “Themis and her Themes.” It is an easy read.

The final 2008 graduating class from Bond University received its awards on Saturday on the Gold Coast. I enjoyed my 6 semesters of law school, and was proud to stand beside many of my friends & colleagues at graduation. Congratulations to all! To the Canadian students who weren’t able to attend graduation, it wasn’t quite the same Bondie experience without you.

Photos