E-Talk Communications Pty Limited t-as Comcen Internet Services & Anor v Universal Music Australia Pty Ltd & Ors

The applicants, E-Talk Communications Pty Limited (trading as Comcen Internet Services) and its director, Mr. John Michael O'Connor, sought to appeal a decision of the Full Federal Court. The respondents were Universal Music Australia Pty Ltd and other record companies. The dispute concerned allegations that the applicants had infringed copyright by making available to the public, via the internet, sound recordings owned by the respondents. The applicants sought to rely on the defence of innocent infringement.

The primary legal issue before the High Court was whether the applicants had established the defence of innocent infringement under section 115(3) of the *Copyright Act 1968* (Cth). This defence requires a defendant to prove that they were not aware, and had no reason to believe, that their acts constituted copyright infringement. The Full Federal Court had found that the applicants had not discharged this onus.

The High Court considered the nature of the internet and the responsibilities of internet service providers. It affirmed that the defence of innocent infringement is a question of fact and that the onus rests on the infringer to prove the requisite lack of knowledge. The Court found that the applicants, as an internet service provider, had not taken sufficient steps to ascertain whether the material being made available through their services infringed copyright, particularly given the nature of the content and the commercial context. Their awareness of the potential for infringement, or their wilful blindness to it, meant they could not establish the defence.

The High Court dismissed the application for special leave to appeal, upholding the decision of the Full Federal Court.