Strict liability within the Copyright (Infringing File Sharing) Amendment Act 2011

This paper examines strict liability within the Copyright (Infringing File Sharing Amendment Act 2011. Prior to the act, enforcing copyright infringement by file sharing was unrealistic due to detection, evidentiary and authorisation problems. The Act resolved these problems by imposing strict liability in the form of vicarious liability and evidentiary presumptions. First, it explores the decision to hold account holders vicariously liable for end user infringements in relation to policy considerations and fact patterns arising in Copyright Tribunal decisions. In doing so, it highlights ways in which injustice may be avoided. Second, it explores the evidentiary presumptions, the underlying policy rationale for their inclusion and the Copyright Tribunal’s application of them. Ultimately, it argues that there is good reason to remove the evidentiary presumptions.