Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Population dynamics of the European rabbit (Oryctolagus cuniculus) in north eastern Australia: simulated responses to control

Wild European rabbits are a serious problem to agriculture in Australia, with an estimated annual cost of A$ 113 million. Biological control agents (myxomatosis and rabbit haemorrhagic disease virus) have caused large and sustained declines in rabbit populations throughout Australia. A simulation model incorporates these diseases as well as warren destruction as methods of controlling rabbit populations in Queensland, north eastern Australia. These diseases reduced populations by 90-99% and the combination of these and warren destruction led to 100% control in simulations at six sites across southern Queensland. Increasing monthly pasture growth by 15% had little effect on simulated populations whereas a 15% decrease reduced populations by 0-50%. An increase in temperature of 2.5 °C would lead to a 15-60% decrease in populations. These effects suggest that climate change will lead to a decrease in the population of rabbits in Queensland and a retraction in the northern limit of their distribution in Australia.

Use of CLIMEX modelling to identify prospective areas for exploration to find new biological control agents for prickly acacia

Selection of biocontrol agents that are adapted to the climates in areas of intended release demands a thorough analysis of the climates of the source and release sites. We present a case study that demonstrates how use of the CLIMEX software can improve decision making in relation to the identification of prospective areas for exploration for agents to control the woody weed, prickly acacia Acacia nilotica ssp. indica in the arid areas of north Queensland.

Studies on the rust Prospodium tuberculatum, a new classical biological control agent released against the invasive alien weed Lantana camara in Australia. 2. Host range

A strain of the rust Prospodium tuberculatum from Brazil was screened as a potential biocontrol agent against 40 Australian Lantana camara forms and 52 closely related, non-target plant species. Results under glasshouse conditions showed that the Brazilian rust strain is pathogenic to only two flower colour forms: pink and pink-edged red. Macro- and microsymptoms were recorded using 11 assessment categories and four susceptibility ratings. No macrosymptoms were observed on any of the non-target plants.

Clinging on: a review on the biological control of cat’s claw creeper

Cat's claw creeper, a native of South America and an escaped ornamental, is a serious environmental weed in Australia, South Africa and also several other countries. This paper reviews the efforts made over the last decade to bring about its biological control. The paper describes the weed status of cat's claw creeper in both Australia and South Africa. These two countries have cooperated in developing biocontrol projects and insect agents have now been released in both countries. These insects and other potential agents are described and suggestions made for the future direction of the projects.