Data Mining and Copyright Infringement

In the recent decision of French J of the Federal Court Nominet UK v Diverse Internet Pty Ltd [2004] FCA 1244 the issue of data mining and copyright infringement were considered at length.

The decision contemplates an Australian Company Director, Norrish, that used the Nominet UK Domain Name Registration Database to determine the Domain Names and mailing addresses of British companies using the .co.uk domain name.

Norrish owned companies took the mined data and sent mail outs stating that .co.uk domain name owners did not have .com domain names under the name (UK) Internet Registry (also owned by Norrish).

The question of misleading and deceptive conduct aside -(IE (UK) Internet Registry is not an official organisation)- the court considered authorisation of infringement or secondary liability.

The court found copyright infringement outright and were concerned with whether Norrish being a director of the company had any idea what his employees were doing.

They stated the correct construction of secondary liability as ‘... meant that express or formal permission or active conduct indicating approval was not essential to constitute an authorisation.’ WEA v Hanimex.

The court then expressed the qualification in Nationwide News v Copyright Agency: ‘Nonetheless, a person does not authorise an infringement merely because he or she knows that another person might infringe the copyright and takes no step to prevent the infringement.’

The court then made an anology with the decision of Australasian Performing Right Association Limited v Jain (1990) 26 FCR 53 where a hotel director who made no conscience effort to prevent infringement or obtain licences from APRA. The result was infringement.

As a result Mr Norrish was not allowed to rely on not personally making the decision to infringe because he failed to take necesary steps.

The quote of the court in Jain may in fact be a message from French J (A pre eminent commercial and IP Judge) on the Kazaa litigation:-

‘The judgment of the members of the High Court in the Moorhouse case establishes that one of the meanings of the word "authorise" in the context in which it is here used is "countenance". It may be that not every act which amounts to the countenancing of something is an authorisation. Every case will depend upon its own facts. Matters of degree are involved. But the evidence in the present case reveals, in our opinion, a studied and deliberate course of action in which Mr Jain decided to ignore the appellant’s rights and to allow a situation to develop and to continue in which he must have known that it was likely that the appellant’s music would be played without any licence from it. It was within his power to control what was occurring be (sic) he did nothing at all. In those circumstances we have reached the conclusion that the appellant established that Mr Jain authorised the infringement of copyright in question contrary to s 36 of the Act.’

I guess we will have to wait and see.