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.