ACU (Australian Catholic University)


Issue 9, Winter 2013

Copyright law matters

Copyright law matters

ACU legal researcher Kylie Pappalardo is breaking new ground in copyright law at Georgetown University, Washington DC, where she is undertaking a visiting researcher position. Sara Coen speaks to the 28-year-old PhD student from ACU’s new Faculty of Law.

Law was not always my dream. I loved books and I always thought I’d be a writer. I added law to my double degree because it balanced nicely against my studies in creative writing. It spoke to my practical side.

There is a method and structure to the law that makes a lot of sense to me. I think I developed an interest in copyright law because it blends my two interests perfectly. Copyright law provides an opportunity to stay involved with the creative arts – and as a researcher, I still get to do a lot of writing.

Because of the internet, copyright law has become a part of everyone’s lives. It’s not an obscure area of the law anymore. We are all confronted with copyright issues regularly, whether we realise it or not. A well-formulated and balanced copyright law can contribute to society – particularly in the information age – by removing unhelpful barriers to creation and cultural exchange.

I am specifically looking at intermediary liability in copyright law. This is often called “authorisation liability” in Australia. Under this doctrine, an intermediary (or go-between) can be held liable if it took sufficient steps to help someone infringe an owner’s copyright.

I am interested in online intermediaries, such as internet service providers (ISPs) or websites, in situations where copyright owners argue that intermediaries have assisted users to download content by providing platforms and services which facilitate the downloading.

It’s a hot topic in the internet age – as copyright owners struggle to locate and identify exactly who is downloading their content – including music, films, photographs and books.

What concerns me is that copyright owners usually want intermediaries to try to stop the infringement by disconnecting people from the internet, blocking websites or filtering content – and these are all measures that directly impact users.

Additionally, our court system is a two-party system, which means that in intermediary liability cases it is the copyright owner (plaintiff) versus the intermediary (defendant). Users are not a party to the case – and so they generally have no say.

It is assumed that users have been acting wrongly, and there is no serious investigation into why they downloaded the content, what they are doing with it, and whether they were acting under an exception to infringement. There is also little consideration given to how measures imposed by intermediaries to stop infringement will affect how users legitimately communicate and engage online.

My research explores the question of how consideration of users might change the way we think about intermediary liability, and the impact this might have on internet law and policy.

This is an important issue because it affects all of us. The internet has become fundamental to the way we communicate with each other, conduct business, learn and explore. We all use the internet, therefore we are all impacted by how it is regulated. Intermediary liability potentially plays a big role in how internet content is regulated, so it is important that we get the law and policy right. We need to be thorough and consider all the relevant interests, including those of users.

ACU’s Executive Dean of Law Professor Brian Fitzgerald is the primary supervisor of my research – and my associate supervisor is Professor Julie Cohen from Georgetown University in Washington DC. Professor Cohen is one of the most astute thinkers I know – and I will be working under her guidance for six weeks during a visiting researcher position at Georgetown University in Washington DC.

Professor Cohen has written a lot about the role of users in copyright law and has significantly influenced the direction of my research.

While in the US, I will be attending the Fordham University Intellectual Property Conference in New York, which is an important annual event in my area of law. At Fordham, I will have the chance to meet and speak to some prominent IP scholars about my research.

I will also be presenting at the IP Scholars Roundtable at Drake University in Des Moines, Iowa. This conference is geared towards emerging IP academics and it provides an opportunity to present research to a group of peers and receive feedback in a supportive environment.

I am reaching a critical point in my PhD where I am starting to bring many of my ideas together and do a lot more writing. The visiting researcher position is an excellent opportunity to get inspired, get motivated and get some serious work done.”

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