Legal limbo remains on music down loads

THE legal position of employers whose employees engage in digital music piracy using company equipment remains unclear amid the bluster and noise of the latest debate on the issue.

The relative ease with which an employee can down load the relevant software and digital music files from the Internet should be of concern to employers who want to restrict the practice.

But the jury is out as to whether the employer or the employee is liable should legal action be taken by the music industry.

The debate is concerned with copyright law and whether a corporate network owner (or Internet service provider) should be held responsible for the actions of those who use the network.

However, some argue that making an Internet service provider or an organisation with a high speed broadband connection responsible for the actions of individual users, who may be down loading pirated files, is akin to suing Australia Post if someone sends a pirated CD through the mail.

Jackson McDonald partner Stephanie Faulkner said that, while it was possible for an employer whose employees were engaging in the practice to find themselves the subject of proceedings by the music industry, it was unlikely.

But employers should take the matter seriously.

“If the employer was aware that staff were doing that [down loading pirated digital music] and did nothing to stop it, then yes, they would be liable,” Ms Faulkner said.

“Normal principles of copyright apply and the employer could be held liable if they were aware that it was happening and did nothing to stop it.

“If an employer or any company receives correspondence, they should take it seriously.

“If proceedings take place, it is really important that all involved understand what is required of them, for example, if they are required to preserve evidence, then they should do so.”

Minter Ellison partner Kevin Edwards said employers should ensure they had a clear policy within their organisation restricting the practice and ensure that it was properly communicated to employees.

Further, he said employers should endeavour to restrict Internet access for employees, for example by blocking the ability to down load certain files and restricting access to certain Internet sites.

WA Internet Association president and director of legal services at the University of Western Australia, Kimberley Heitman, said the a lack of legal precedents in Australia made digital copyright a grey area within the law.

“There is a lack of clarity in the law as to whether the network operator is responsible for the users of the network,” he said.

Mr Heitman, who is also an Electronic Frontiers Australia board member, said an added dimension to the argument was whether it was legal for a network operator to stop or intercept files and network traffic.

He said the situation could become clearer when the Federal Government completes its review of the Digital Agenda copyright reforms examining the major amendments to the Copyright Act, which came into effect in March 2001.

These changes concern online copyright law reform and the issues posed by the Internet and other new communications media.

Mr Heitman said it was impossible to stop, through the use of technology, an employee from engaging in digital music piracy.

Ms Faulkner said the approach taken by the music industry in the US was quite different to the approach taken in Australia.

While companies in the US had taken the approach of suing individuals, she said, the music industry in Australia was targeting those people who operate peer-to-peer software, that is, the music pirates.

ARIA chief executive Steven Peach was unavailable for comment at the time WA Business News went to press.

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