Who's liable for illegal downloads in the workplace?

Hollywood is targeting nearly 5,000 Aussies who downloaded Dallas Buyers Club illegally – but who is responsible if the offence occurs in the workplace?

Following a Federal Court Judge’s order earlier this month that several Australian internet service providers disclose the identities of thousands who illegally downloaded Hollywood blockbuster Dallas Buyers Club, around 4700 culprits are expected to receive letters demanding compensation from the filmmakers.

But who is liable if illegal downloading occurs in the workplace?

According to Will Spargo, senior associate at Lander & Rogers Lawyers, employers could potentially be liable for staff members who illegally download content at work.

“Under the Copyright Act a person – which could include an employer – who authorises an infringement of copyright will be liable in the same way as the person who commits the act,” Spargo told HC.

In considering whether a person has authorised an infringement, there are three key things a court will take into account:
  • The extent of that person’s power to prevent the action from occurring
  • The nature of the relationship between that person and the person who infringed the copyright
  • Whether the person took reasonable steps to prevent or avoid the act from occurring
“Given an employer’s capacity to control people’s actions at work, it’s my view that a court could find an employer had authorised it if reasonable steps to prevent the infringement from occurring were not taken,” he added.

Spargo said that a key step employers can take to prevent workers from downloading material – and to avoid liability for authorising illegal downloads – is to have a clear policy in place which instructs that employees should not download any material which would infringe copyright and give examples to their employees of how this might occur.

“In order to show that they have taken all possible steps to prevent illegal downloading, it’s important that the policy doesn’t sit on a shelf gathering dust; it should be regularly brought to employees’ attention, and there should be training on the policy at regular intervals,” he explained. “I’d suggest that a section on the prohibition of downloading copyrighted material be included as part of a broader policy on social media and internet use.”

Spargo also said that although he didn’t think it that it is necessarily an employer’s responsibility to prevent illegal downloading of copyright content by their employees, there is certainly a risk of liability if there’s no policy in place around it.

“Having said that, to my knowledge, this issue of liability is yet to be tested in Australia – but in light of the Dallas Buyers Club decision, it’s possible that owners of copyrighted content will start to be more proactive in pursuing people who download or authorise the illegal downloading of copyrighted content,” he added.

Having an appropriate social media and internet use policy in place isn't only important for helping to prevent the illegal downloading of copyright content by employees, Spargo advised. It also:
  • Ensures that an employer has  the ability to take appropriate disciplinary action against employees for internet misuse; and
  • Reduces an employer's risk of liability more generally for their employees' online conduct.    

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