End-User Perspective (Routledge Research in Intellectual Property) 1st Edition Lasantha Ariyarathna

Streaming and Copyright Law: An
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Streaming and Copyright Law
This book examines the challenges posed to Australian copyright law by

streaming, from the end-user perspective. It compares the Australian position
with the European Union and United States to draw lessons from them, regarding
how they have dealt with streaming and copyright. By critically examining the
technological functionality of streaming and the failure of copyright enforcement
against the masses, it argues for strengthening end-user rights.
The rising popularity of streaming has resulted in a revolutionary change to
how digital content, such as sound recordings, cinematographic films, and radio
and television broadcasts, is used on the internet. Superseding the conventional
method of downloading, using streaming to access digital content has challenged
copyright law, because it is not clear whether end-user acts of streaming constitute
copyright infringement. These prevailing grey areas between copyright and
streaming often make end-users feel doubtful about accessing digital content
through streaming. It is uncertain whether exercising the right of reproduction
is appropriately suited for streaming, given the ambiguities of “embodiment”
and scope of “substantial part”. Conversely, the fair dealing defence in Australia
cannot be used aptly to defend end-users’ acts of streaming digital content,
because end-users who use streaming to access digital content can rarely rely
on the defence of fair dealing for the purposes of criticism or review, news
reporting, parody or satire, or research or study. When considering a temporary
copy exception, end-users are at risk of being held liable for infringement when
using streaming to access a website that contains infringing digital content, even
if they lack any knowledge about the content’s infringing nature. Moreover,
the grey areas in circumventing geo-blocking have made end-users hesitant to
access websites through streaming because it is not clear whether technological
protection measures apply to geo-blocking. End-users have a severe lack of
knowledge about whether they can use circumvention methods, such as virtual
private networks, to access streaming websites without being held liable for
copyright infringement. Despite the intricacies between copyright and access to
digital content, the recently implemented website-blocking laws have emboldened
copyright owners while suppressing end-users’ access to digital content. This is
because the principles of proportionality and public interest have been given less
attention when determining website-blocking injunctions.
Lasantha Ariyarathna (LLB (Hons) Colombo, LLM (La Trobe), M IP Law
(QUT), PhD (Griffith)) has functioned as a Research Assistant at the Law Futures
Centre at Griffith University, Brisbane, Australia. He is an Attorney-at-Law of the
Supreme Court of Sri Lanka.
Routledge Research in Intellectual Property
Available:
Copyright Law and Derivative Works

Regulating Creativity
Omri Rachum-Twaig
The Patentability of Software

Software as Mathematics
Anton Hughes
Annotated Leading Trademark Cases in Major Asian Jurisdictions

Edited by Kung-Chung Liu
SEPs, SSOs and FRAND

Asian and Global Perspectives on Fostering Innovation in Interconnectivity
Edited by Kung-Chung Liu and Reto M. Hilty
Towards an Ecological Intellectual Property

Reconfiguring Relationships Between People and Plants in Ecuador
David Jefferson
The Transformation of EU Geographical Indications Law

the Present, Past and Future of the Origin Link
Andrea Zappalaglio
Copyright Law and Translation

Access to Knowledge in Developing Economies
Chamila S. Talagala
Patent Law, Green Technology and Innovation

Ankit Singh and Yogendra Kumar Srivastava
For more information about this series, please visit https://www.routledge.com/

Routledge-Research-in-Intellectual-Property/book-series/INTELLPROP
Streaming and Copyright Law
An end-user perspective
Lasantha Ariyarathna
First published 2023
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2023 Lasantha Ariyarathna
The right of Lasantha Ariyarathna to be identified as author of this work
has been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record has been requested for this book
ISBN: 978-1-032-26086-0 (hbk)
ISBN: 978-1-032-26090-7 (pbk)
ISBN: 978-1-032-26093-8 (ebk)
DOI: 10.4324/9781032260938
Typeset in Times New Roman
by Deanta Global Publishing Services, Chennai, India
To my wife Prabha and son Himsara
Contents
Acknowledgements viii
Abbreviations ix
1 Introduction 1
2 Technological Aspects of Streaming 9
3 The Impact of Copyright Law on Streaming 24
4 Copyright Defences or Exceptions for Streaming

Digital Content 90
5 Circumvention of Geo-Blocking, Technological

Protection Measures, and Streaming 125
6 Website Blocking as a New Enforcement Mechanism,

Streaming, and End-Users 163
7 Conclusion and Recommendations 202
Bibliography 223
Index 256
Acknowledgements
I wish to thank Associate Professor Kanchana Kariyawasam, and Dr Althaf

Marsoof, who encouraged me to turn my PhD thesis into a book, and for their
insightful comments, and unflagging support. I also would like to thank Dr Ben
French, Professor Leanne Wiseman, Professor Kamal Puri, and Professor Anne
Fitzgerald for their invaluable advice and the support I received at various stages
of my PhD. I would like to thank my friends, who encouraged me to publish this
book. I greatly value my wife Prabha’s emotional support. She has always stood
behind me, being a prime motivator to complete this book. I am thankful to my
son, Himsara, for being my stress-relaxer, although we find limited time to play
together. Finally, I owe a debt of gratitude to my parents for their unconditional
support and encouragement.
Abbreviations
ACCC Australian Competition and Consumer Commission

ACTPM Access Control Technological Protection Measure
AFACT Australian Federation against Copyright Theft
ALRC Australian Law Reform Commission
ARPANET Advanced Research Projects Agency Network
CDs Compact Discs
CJEU Court of Justice European Union
DMCA Digital Millennium Copyright Act
DRM Digital Rights Management
DSM Digital Single Market
DVDs Digital Versatile Discs
ECJ European Court of Justice
EU The European Union
IP Internet Protocol
ISPs Internet Service Providers
IT Information Technology
PSA Program Supply Agreement
RAM Random Access Memory
RIAA Recording Industry Association of America
RS-DVR Remote-Storage Digital Video Recording
Smart DNS Specific Domain Name Systems
STB Set-Top Boxes
TFEU Treaty on the Functioning of the European Union
TPMs Technical Protection Measures
UK The United Kingdom
USA The United States of America
VPN Virtual Private Networks
WIPO World Intellectual Property Organization
1 Introduction
1.1 Introduction
In the pre-internet era, people gathered at the cinema to watch a film, sat in front
of the television to watch a program, or clustered around the radio to listen to a
sound recording. Now that the internet reigns supreme in the domain of digital
technology, people’s television- and radio-based watching and listening habits
have transformed phenomenally. The digital technologies that have emerged from
the internet, such as file downloading and sharing technology, have enhanced the
digital content landscape dramatically by enabling the effortless dissemination of
copyright-protected works over the internet. Following the technological advance-
ments of file sharing and downloading, more recently, streaming has gained more
popularity as a felicitous method to access digital content. Developments in
streaming technology have caught the attention of many copyright stakeholders,
such as copyright owners, internet intermediaries, website aggregators, and end-
users. This is because streaming has enabled people to overcome many issues
with downloading and sharing, such as large file sizes and high distribution costs
in moving sounds and images over the internet. Conversely, streaming gives end-
users access to any video or audio via an array of devices such as computers,
mobile phones, and tablets, which merely require uninterrupted internet connec-
tivity for the end-user to access any video or audio through streaming.
As a contemporary technological method to access digital content, streaming
has created numerous challenges for copyright law. First, it poses a major chal-
lenge to exercising the right to reproduction by copyright owners because, in most
cases, tangible copies of copyright-protected works are considered an infringe-
ment. By contrast, streaming involves only the transient storage of fragments of
particular digital content. When streaming is used, such fragments are stored tem-
porarily in the random access memory (RAM) of an end-user’s computer or other
streaming device, raising issues about whether an infringement has even occurred.
Second, peer-to-peer streaming can be a threat to the protection of copyright
owners’ digital content, especially in the film and sports broadcasting industries.
By using peer-to-peer technology in streaming, for instance, through websites
DOI: 10.4324/9781032260938-1
2 Introduction
such as SopCast,1 CoolStreaming,2 and Zattoo,3 end-users can disseminate digital
content themselves. This raises the question as to whether peer-to-peer streaming
constitutes an infringement of the right of communication to the public.
Third, within the context of Australia, when end-users access digital content
through streaming, they have a limited defence; the pre-eminent legal defence is
that access to digital content through streaming satisfies fair dealing. Due to its
narrow coverage, however, fair dealing is permissible only in specific circum-
stances, such as criticism, news reporting, research, or parody and satire. The
question then arises as to whether the fragments reproduced in a device’s RAM
can be exempted under the temporary copy exception.
Fourth, when copyright owners are dissuaded from protecting their works due
to technological enhancements, they use new strategies to restrict access to digital
content. These include restrictions based on location, popularly known as “geo-
blocking”. For example, the United States (US) version of Netflix is not avail-
able to Australian end-users.4 To overcome their frustration with failing to access
streaming websites, Australian end-users commonly use circumvention methods
such as virtual private networks (VPNs) to stream geo-blocked digital content.
Under Australian copyright law, it is not resolved whether this practice constitutes
copyright infringement.
Finally, consequent to amendments made in 2015 to the Australian Copyright
Act 1968 (Cth) (Copyright Act), copyright owners can apply for an injunction,
which requires an internet service provider (ISP) to block access to websites that
contain infringing content. These injunctions apply mostly to overseas-operated
websites that end-users use to access digital content through streaming. In 2018,
website-blocking laws were further strengthened to allow copyright owners to
extend their injunctions without the Courts intervening. The manner in which
website-blocking injunctions are granted leads to questioning whether the inter-
ests of the end-users are being disregarded—jeopardising the balance between
copyright owners and users of copyright-protected works.
In light of these aforementioned grey areas emerging from using stream-
ing to access digital content, this book aims to explore the impact of streaming
on end-user interests by engaging in a critical analysis of the current copyright
laws in Australia. More specifically, it examines whether the Copyright Act
1 SopCast adopts peer-to-peer technology to enable free broadcasts of video and audio and to
allow end-users to watch videos and listen to radio on the internet <www.sopcast.en.sifttonic
.com> accessed 10 October 2021.
2 CoolStreaming provides a peer-to-peer television technology enabled platform for end-users to
share television content with each other over the internet <www.coolstreaming.us> accessed 10
October 2021.
3 Zattoo is a TV streaming service that offers Live TV and on-demand content that can be watched
over the internet <https://zattoo.com/ch/> accessed 10 October 2021.
4 Chris Jager, ‘US Netflix Is Being Blocked in Australia: What Can You Do about It?’ Lifehacker
(News Article, 2016) <https://www.lifehacker.com.au/2016/01/us-netflix-blocked-in-australia
-heres-what-you-can-do-about-it/> accessed 12 June 2021.
Introduction 3
accommodates the interests of end-users when they use streaming to access digital
content, such as cinematographic films, sound recordings, or television and sound
broadcasts. The analysis used in this book is grounded in two key areas of copy-
right law: (i) liability of end-users for potential copyright infringement, and (ii)
restricted access of the end-user. Accordingly, this book examines the grey areas
of streaming in terms of the right of reproduction, the right of communication to
the public, and circumvention of geo-blocks, to determine whether end-users are
at risk of being held liable for copyright infringement. It also examines whether
restricting access, in the form of limited fair dealing defences or implementing
website-blocking laws, has affected the interests of end-users.
1.2 Streaming Technology: Definition, Streaming

Methods, and Historical Development
Streaming has been defined as the “technology of sending data, for example the
contents of a podcast file, to some user of the World Wide Web”.5 Streaming is
recognised as the digital distribution of audio or video material in real time or as
close to real time as allowed by technological constraints.6 From the standpoint of
the end-user experience, the process of streaming starts when the end-user clicks
a button on a website, allowing audio or video to start playing instantly and to
continue to play until the end of the digital content without any difficulty or delay.
During this process, the end-user receives digital content but does not retain a
copy at their end. Often, the terms “streaming” and “webcasting” are used inter-
changeably. From a technical perspective, streaming can even be implemented
without the internet, such as when delivered through private intranets. Therefore,
streaming and webcasting overlap and coexist because of the intrinsic features
and characteristics of both.7
There are two types of streaming—on-demand and live streaming. The salient
feature of on-demand streaming is that digital content is transmitted to a client at
their request. On-demand streaming is used for entertainment, such as watching
movies or listening to music. In live streaming, digital content is taken from live
sources, such as webcams and camcorders, and broadcast live over the internet to
end-users. If the end-user is not available at the time of live streaming, they can
only access the digital content if the publisher also provides on-demand streaming.
Streaming can also be categorised according to its use. First, streaming can be
used to distribute online content produced or owned by a company with no inter-
mediary. This strategy has been used by sports leagues to distribute live sport-
ing events to the public. In Australia, for instance, the National Hockey League
5 Darrel Ince, A Dictionary of the Internet (Oxford University Press, 2nd ed, 2009) 343.
6 Daniel Chandler and Rod Munday, Dictionary of Media and Communication (Oxford University
Press, 2011) 364.
7 David Austerberry, The Technology of Video and Audio Streaming (Focal Press, vol 2, 2004) 8.
4 Introduction
and Australian Football League (AFL) provide online streaming via their official
websites.8
Second, a content owner can authorise a content provider to stream particular
online content. This strategy is popular among both content owners and provid-
ers, because it operates as a separate business based on licensing content. Popular
streaming websites, such as Hulu and Netflix, use this strategy to provide on-
demand streaming.
Third-party streaming is the third strategy, which is used by several websites.
Most popular online content is either hosted or linked to these websites, where
end-users can access the content either for free or by paying a fee. Examples
of on-demand streaming websites available in Australia include Solar Movie,
Primewire, Filmclub, and House Movie. This vast dissemination of digital con-
tent to end-users has been assisted by the widespread availability of broadband
internet together with personal computers and mobile smartphones.9 Streaming is
associated with complex issues, because of how it interlinks with website provid-
ers, content aggregators, ISPs, and end-users.
1.2.1 Brief History of Streaming

Streaming began with the historical efforts to move images and sounds. Since
the inception of visual reproduction, technological changes, including celluloid,
vinyl records, television, videocassettes, compact discs (CDs), and digital versa-
tile discs (DVDs) each have marked historical milestones in the field of moving
images and sounds.10 For these initial reproductions, such as vinyl records and
videocassettes, most modes used were based on tangible forms. With the advent
of the internet, the trend has shifted towards intangible forms where end-users
have the ability to access digital content virtually without using it physically.
The concept of streaming is not new, however; in the early days of televi-
sion, it was used for raw and unprocessed video.11 Streaming emerged from the
notion of live broadcasting television and radio programs. Even during the inter-
net’s formative period, the concept of streaming was present.12 The Advanced
Research Projects Agency Network (ARPANET) was developed in the 1990s,
which formed the foundation of the internet. At this time, ARPANET’s focus
8 See: Australian Football League <http://www.afl.com.au/video> accessed 10 January 2018.

9 John Tehranian, Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011) 1.
10 Eyal Menin, Streaming Media Handbook (Prentice Hall PTR, 2003) 6–11; Brad Sherman and
Leanne Wiseman, Copyright and the Challenge of the New (Wolters Kluwer Law & Business,
2012) 43–218.
11 Wheeler Winston, Streaming: Movies, Media, and Instant Access (University Press of Kentucky,
2013) 03.
12 James Forgie, ‘ST—A Proposed Internet Stream Protocol’ (Thesis, MIT Lincoln Laboratory,
1979) <https://www.rfc-editor.org/ien/ien119.txt> accessed 24 August 2021. In this thesis con-
ducted in 1979, Forgie stated that “[t]he internet stream protocol (ST) described in this document
has been developed to support efficient delivery of streams of packets to either single or multiple
destinations in applications requiring guaranteed data rates and controlled delay characteristics”.
Introduction 5
was on developing a communication system that would work, even during a cata-
strophic global crisis.13 When ARPANET became the “internet”, communication
between two or more computers increased significantly.14 In 1993, the first web
browser, “Mosaic”, initiated the concept of sharing and linking resources on the
internet.15 As people sought to exchange data or information through Mosaic,
internet traffic increased, which caused a delay in users receiving information sent
by others.16 Most of the information exchanged was designed using the down-
load-then-play model, so end-users could wait for it to download or send files.
Nonetheless, the ubiquity of the internet persuaded media producers and content
owners to find a different technique for delivering video content over an inter-
net protocol (IP) network.17 In September 1994, the first on-demand streaming
was reported, when Cambridge Digital Interactive Television provided video and
data to 250 homes.18 In September 1995, ESPN Sports-Zone adopted technology
developed by Progressive Networks to stream the first live radio broadcast of a
baseball game.19 Now, more than two decades after its introduction, streaming is
a major global communication strategy.
1.2.2 Streaming and the End-User in Australia

Internet use in Australia has expanded in recent years. According to the Australian
Bureau of Statistics, at the end of June 2018, Australia had nearly 14.7 million
internet subscribers, an increase of 3.7% from the end of December 2017.20 Despite
the expansion of their internet use, Australian end-users cannot—somewhat
implausibly—access some popular copyright-protected works through streaming.
13 Dan Rayburn and Michael Hoch, The Business of Streaming and Digital Media (Taylor & Fran-
cis, 2005) 31; Barry M Leiner et al, ‘Brief History of the Internet: Introduction’, Internet Society
(Web Page, 1997) <http://www.internetsociety.org/internet/what-internet/history-internet/brief
-history-internet> accessed 24 March 2021: the development of ARPANET was longwinded
because there were new protocols such as the File Transfer Protocol (FTP), Transmission Con-
trol Protocol (TCP), and Internet Protocol (IP).
14 Raphael Cohen-Almagor, ‘Internet History’ (2011) 2(2) International Journal of Technoethics 45.
The term ‘internet’ was first introduced by Vint Cerf and Robert Kahn in their paper ‘A Protocol
for Packet Network Intercommunication’ (1974) 22(5) IEEE Transactions on Communications
(COM) 637–648.
15 Dan Rayburn and Michael Hoch, The Business of Streaming and Digital Media (Taylor & Francis,
2005) 32.
16 Steve Mack, Streaming Media Bible (Hungry Minds, 2002) 30.
18 Stuart Nolan, ‘iDTV Gamers: The Emergence of New Community?’ (Conference Paper: Proceed-
ings of Computer Games and Digital Cultures Conference, 2002) <http://www.digra.org/wp-con-
tent/uploads/digital-library/05164.17549.pdf> accessed 15 January 2020.
19 Alex Zambelli, ‘A History of Media Streaming and the Future of Connected TV’, The Guardian
(News Article, March 2013) <http://www.theguardian.com/media-network/media-network-blog
/2013/mar/01/history-streaming-future-connected-tv> accessed 12 March 2021.
20 Australian Bureau of Statistics, ‘Type of Access Connection’, Australian Bureau of Statistics (Web
Page, 2016) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/8153.0> accessed 13 May 2021.
6 Introduction
For example, not all cinematographic films provided by foreign Netflix libraries
are available in Australia.21 Among several other countries, Australia also has one
of the highest rates of copyright infringement in the online environment world-
wide.22 The blocking of websites has influenced Australian end-users to access
digital content in covert ways, such as by using VPNs.23 In 2017, Australian
end-users’ high level of VPN use was evident when more than 500,000 viewers
watched an iconic boxing match via an unauthorised live stream.24 A massive
amount of digital video content, including cinematographic films, is also available
for Australians through free websites such as SolarMovie25 and FMovies.26
Although copyright owners should be able to gain economic incentives from
copyright-protected works, the overprotection of copyright disrupts the balance
if access to copyright-protected works by end-users is restricted unreasonably.27
Copyright infringements based on small-scale non-commercial use do not neces-
sarily impede innovation, because such infringements are for personal consump-
tion only.28 Copyright-protection enforcement methods, such as website blocking,
may promote further online infringements if the public becomes impatient to
explore what is restricted or suppressed by law. This phenomenon, known as
the “Streisand effect” in communication,29 can increase internet traffic and cir-
cumvention possibilities. Significantly, there is beginning to be recognition of
21 Stephen Lambrechts, ‘Not Available on Netflix Australia: The Best Shows & Movies You Need a
VPN for’, Tech Radar (Web Page, 11 September 2017) <https://www.techradar.com/au/news/not
-available-on-netflix-australia-the-best-shows-movies-you-need-a-vpn-for> accessed 2 Novem-
ber 2021.
22 Ernesto Van der Sar, ‘Game of Thrones Season Finale Sets New Piracy Record’, Torrent Freak
(Blog Post, 17 June 2014) <https://torrentfreak.com/game-of-thrones-season-finale-sets-new
-piracy-record-130610/> accessed 24 May 2017; Renai LeMay, ‘Despite Quick, Cheap, Legal
Option, Australia Still Top Game of Thrones Pirating Nation’, Delimiter (Blog Post, 3 April
2003) <http://delimiter.com.au/2013/04/03/despite-quick-cheap-legal-option-australia-still-top
-game-of-thrones-pirating-nation/> accessed 24 May 2021.
23 Ernesto Van der Sar, ‘Australia’s Private Site Blockade Boosts Demand for VPNs’, Torrent Freak
(Blog Post, 16 December 2016) <https://torrentfreak.com/australias-pirate-site-blockade-boosts
-demand-for-vpns-161217/> accessed 24 May 2021.
24 David Rowe and Brett Hutchins, ‘Prize Fight over Live-Streamed Sport Will Go on Long after
the Final Bell Sounds’, The Conversation (News Article, 7 February 2017) <https://theconver-
sation.com/prize-fight-over-live-streamed-sport-will-go-on-long-after-the-final-bell-sounds
-72494> accessed 12 March 2020.
25 SolarMovie is the biggest library of free movies and TV shows, which is available on <http://
solarmoviefree.net/> accessed 12 January 2021.
26 FMovies is a website that provides online library for cinematic digital content without registra-
tion <https://fmovies.pe/> accessed 12 January 2021.
27 Jerry Jie Hua, Toward a More Balanced Approach: Rethinking and Readjusting Copyright Systems
in the Digital Network Era (Springer, 2014) 39–50.
28 Dyuti Banerjee and Sougata Poddar, ‘Innovation and Copyright Infringement: The Case of Com-
mercial Piracy and End-User Piracy’ (Working Paper, AUT University, December 2013) 1.
29 The Streisand effect is a paradoxical consequence that occurs from an attempt to remove or censor
information, in particular from the internet; in Sue Jansen and Brian Martin, ‘The Streisand Effect
and Censorship Backfire’ (2015) 9 International Journal of Communication 656–671.
Introduction 7
the interests of users of copyright-protected works. To achieve broader standards
and purposes in copyright law, the interests of users are as vital as those of the
copyright owners.30
There are three grounds on which to develop a rationale for expanding end-
user interests. First, end-users have inadequate remedies against copyright owners
when digital content is either distributed unevenly or made available in geograph-
ically segregated markets, such as when they are controlled through technological
protection measures (TPMs). Second, there is vagueness surrounding exceptions
to copyright infringement, especially regarding whether end-users can rely on
such exceptions when using copyright-protected works in novel ways. Third,
human-rights-based principles, particularly those of public interest and propor-
tionality, highlight the importance of maintaining the right balance between the
interests of copyright owners and end-users.
1.3 What Are the Main Issues in Streaming and Copyright?

This book investigates whether copyright law in Australia accommodates the
interests of end-users when they use streaming to access digital content. It aims
to answer the central question: How can end-user interests be accommodated in
current copyright law in Australia when streaming is used to access digital con-
tent? In answering the central question, this book seeks answers to the following
sub-questions.
1. In what manner do the provisions dealing with copyright infringement in the

Copyright Act impact the act of streaming on the part of end-users?
This question aims to examine whether the use of streaming constitutes a case
of copyright infringement. It explores whether merely watching or listening to
copyright-protected works via streaming is recognised as copyright infringement
under copyright law. It examines whether the right of reproduction is infringed
by mere access and whether the right of communication to the public is infringed
when end-users use peer-to-peer streaming to disseminate digital content while
accessing it.
2. In what manner do the defences under the Copyright Act impact acts of
streaming on the part of end-users?
Considering the current defences in the Copyright Act, this question examines
whether end-users can rely on existing copyright defences to avoid liability for
copyright infringement when they access digital content through streaming.
30 Niva Elkin-Koren, ‘The New Frontiers of User Rights’ (2016) (32) 1 American University Inter-
national Law Review 30; Pascale Chapdelaine, ‘Copyright User Rights and Remedies: An Access
to Justice Perspective’ (2018) 7 Laws 1–26.
8 Introduction
3. In what manner do the provisions of the Copyright Act, especially those
dealing with technology protection measures, affect acts of streaming on the
part of end-users?
The licences for digital content are commonly territorial and acquired on a coun-
try-by-country basis, causing market fragmentation. Borders have been created on
the internet through geo-blocking, disallowing end-users from accessing digital
content based on their geographical location. Thus, end-users have employed sev-
eral circumvention techniques such as VPNs to evade geo-blocking. This ques-
tion examines whether the territoriality of copyright law conflicts with streaming,
which empowers the borderless nature of the internet.
4. In what manner does website blocking, as provided for under the Copyright
Act, affect acts of streaming on the part of end-users?
This question examines the extent to and manner in which Australian web-
site-blocking laws affect end-users who access digital content via streaming.
Specifically, it explores whether the Copyright Amendment (Online Infringement)
Act 2015 and Copyright Amendment (Online Infringement) Act 2018 have
adversely affected end-user interests when they access digital content.
5. How does the Australian approach compare with that of the European Union
(EU) and the United States of America (USA) regarding the use of streaming
of digital content?
A thorough investigation into the failures or successes of legislation and case law
in other jurisdictions assists a cogent law-making process. Therefore, this ques-
tion explores how Australian copyright law can be adapted to incorporate positive
aspects of copyright law in the EU and USA to cover new technologies such as
streaming.
6. How should Australia respond to current inadequacies in copyright law when

applied to streaming?
Technological developments such as streaming challenge traditional copyright

law. It is critical that the interests of copyright owners are balanced with those of
end-users. This is often considered an unattainable ideal, however, due to prac-
tical difficulties. This question attempts to unravel opportunities to reform the
legislation to resolve key concerns and issues in streaming.
2 Technological Aspects of Streaming
2.1 Introduction
Streaming has gained popularity among end-users because it has the ability to offer
active end-user engagement. When streaming is used to access digital content on
the internet, tension has arisen between copyright owners and end-users regard-
ing the ease of reproduction and distribution of sound recordings, cinematograph
films, and television and sound broadcasts. As discussed in Chapter 1, end-users
use both on-demand streaming and live streaming to access digital content on the
internet. Yet, the technology behind streaming has not been analysed adequately
from the standpoint of the end-users: therefore, in the eyes of copyright law, it
occupies a grey area.1 Moreover, streaming is a phenomenon that is highly vul-
nerable to copyright law, despite its characteristic of being “open to all” through
which any interested person can access digital content.2
This chapter examines the technological aspects of streaming, while analys-
ing the challenges it poses to copyright law. It is important to examine whether
streaming operates in a similar way to earlier techniques for accessing digital con-
tent, such as downloading. A conceptual rethinking of streaming and its relation-
ship with copyright, moreover, depends on understanding how end-users access
digital content through different ways of streaming. Accordingly, this chapter is
divided into four sections, which critically discuss the technological impact that
streaming has on the dissemination of digital content.
The first section of this chapter introduces current trends in the digital environ-
ment, where streaming has been recognised as a revolutionary method for watching
1 David J Kappos and Claes Langenius, ‘Stream of Conscience: American And EU Citizens Know
It Is “Wrong”—But Is Unauthorized Streaming Illegal?’ (2014) 25(3) Entertainment Law Review
97–103; Benjamin Beck and Konstantin von Werdero, ‘Live-Streaming Apps and Sporting Events—
Copyright Law Concerns’ (Blog Post, 26 August 2015) <https://www.allaboutipblog.com/2015/08
/live-streaming-apps-and-sporting-events-copyright-law-concerns/> accessed 12 June 2021; Todd
Spangler, ‘Mayweather–McGregor Fight: Pirated Live Streams Reached 2.9 Million Viewers’,
Variety (online, August 2017) <http://variety.com/2017/digital/news/mayweather-mcgregor-fight
-piracy-illegal-live-streams-1202540360/> accessed 20 August 2021.
2 Jack Birmingham and David Matthew, ‘Live Streaming: Will Football Fans Continue to be more
Law Abiding than Music Fans?’ (2011) 14(1) Sports in Society 69–80.
DOI: 10.4324/9781032260938-2
or listening to digital content over the internet. The second section examines the
technology behind streaming, while highlighting the streaming “life cycle”. In
particular, it examines how digital content displays on an end-user’s device after
completing certain technical modifications. The third section examines streaming
methods such as unicast, multicast, user-generated, and peer-to-peer streaming,
identifying how these each enable the end-user to access or disseminate digital
content online. It then explains the challenges posed by these four methods of
streaming. Moreover, the section examines the technological developments of
streaming-enabled new apparatuses such as set-top boxes, streaming sticks, and
game consoles, because they are enormously persuasive for end-users to access
digital content through streaming. In view of these technological underpinnings,
the chapter’s fourth section reviews the key factors by which end-user behaviour
changed, from copy-centric3 use of digital content to access- and dissemination-
based use. It identifies that the “download” requirement was discontinued after
streaming was introduced. The copyright-protected anonymous use of digital con-
tent, specifically seen in user-generated and peer-to-peer streaming, has encour-
aged the end-user to disseminate digital content with confidence. This section,
therefore, argues that the non-downloading and anonymity features of streaming
have challenged copyright law considerably regarding the use of digital content
on the internet.
2.2 The Technology behind Streaming

The term “streaming” reflects that digital content is not downloaded or stored
on an end-user’s computer. Instead, the content “streams” in real time and then
vanishes.4 Unlike in the past, where digital content had to be downloaded in its
entirety before accessing it, streaming allows the end-user to access such content
while it is being received. For its incidental nature, streaming is always referred to
as “real time”, which implies that the end-user can either watch or listen to digital
content as it happens. Yet, the term “real time” does not necessarily mean that the
content has to be “live”.5
As discussed in Chapter 1, there are two types of streaming: on-demand and live
streaming. This division has been made according to the different technological
3 According to the copy-centric model, the centre of copyright protection and enforcement should be
based on the notion of control of reproduction. See: E Miller and J Feigenbaum, ‘Taking the Copy
Out of Copyright’, in Thomas Sander T (ed), Security and Privacy in Digital Rights Management—
ACM CCS-8 Workshop (2001) <http://www.cs.yale.edu/homes/jf/MF.pdf> accessed 12 August
2021; Bingbin Lu, ‘Reconstructing Copyright from “Copy-centric” to “Dissemination-centric” in
the Digital Age’ (2013) 39(4) Journal of Information Science 479–493; Isabella Alexander, ‘The
Concept of Reproduction and the “Temporary and Transient” Exception’ (2009) 68(3) The Cam-
bridge Law Journal 520.
4 Mindy Anneli (ed), Handbook of Research on E-Government Readiness for Information and Service
Exchange: Utilizing Progressive Information Communication Technologies (IGI Global, 2010) 137.
Technological Aspects of Streaming 11
features involved.6 According to the streaming on-demand technique, the data or
files of the digital content are stored on a central server and delivered to an end-
user upon request.7 In this technique, the selected digital content will start playing
swiftly, while parts of particular content are still being received and decoded.8
On-demand streaming is used for entertainment, such as watching movies or lis-
tening to music, and has largely been recognised as an end-user-friendly method
because of its interactive capability. In other words, in on-demand streaming, the
end-user controls a stream by pausing, stopping, or changing the bit rate of digital
content.
The second streaming method is called live streaming or webcasting. In con-
trast to on-demand streaming, live streaming delivers digital content from a single
source, such as a video camera or microphone.9 For example, live streaming is
used regularly to watch sports and other live social events, which are broadcast
via a television or radio. Live streaming is also used for events that give inimitable
experience when accessed in real time. It involves transmission or broadcasting
and is similar to live television or radio programs.10
To watch or listen to digital content through streaming needs an enormous
amount of telecommunication infrastructure, such as wires, switches, satellites,
high-speed internet connections, and other technological equipment.11 Thus, it is
important to know what the central components of streaming technology are to
understand how streaming takes place on a computer or similar device.
Digital content is produced in the particular manner needed for on-demand or
live streaming. In live streaming, for example, the organisers or broadcasters of a
live event make arrangements to capture or record content digitally. The video or
audio of a live event is recorded or captured using devices such as a camcorder or
digital still-frame camera. If the digital content is merely audio, all that is needed
is a microphone connected to a computer or audio recorder. Alternatively, if the
digital content is being produced for on-demand delivery, it is stored on a server
and delivered at a controlled rate to the end-user in real time, as if it were live.
The primary factor behind a stream, however, is that it does not demand steady
storage in an end-user’s computer or any other device for the video or audio data,
because it modifies such data in the delivery process, which has different stages.
6 Eyal Menin, Streaming Media Handbook (Prentice Hall PTR, 2003) 9–15.
7 Eldar Haber, ‘Copyrights in the Stream: The Battle on Webcasting’ (2012) 28(4) Santa Clara
Computer and High—Technology Law Journal 769.
8 Jason Lunardi, ‘Guerrilla Video: Potential Copyright Liability for Websites That Index Links to
Unauthorized Streaming Content’ (2009) 19(4) Fordham Intellectual Property, Media & Enter-
tainment Law Journal 1077–1129.
10 See: Cheng Lim and Warren B Chik, ‘Whither the Future of Internet Streaming and Time-Shifting?
Revisiting the Rights of Reproduction and Communication to the Public in Copyright Law after
Aereo’ (2015) 23(1) International Journal of Law and Information Technology 53–88.
11 Jennifer Holt and Kevin Samson, Connected Viewing: Selling, Streaming and Sharing Media in the
Digital Era (Routledge, 2014) 19.
First, digital video or audio needs to be reduced to a small media file, given
that raw audio or video cannot be used for streaming unless converted to a specific
format. The process of adapting audio or video for streaming is called encod-
ing.12 Encoding involves several stages: (i) converting the conventional audio or
video signal into a file format that is compatible and readable on computers;13 (ii)
compressing video data using downscaling; (iii) arranging the video for low bit
rate14 applications, which is important for transmission over narrow-bandwidth
channels; and (iv) converting the compressed video file to a stream format, which
is generally known as a “packetised format”.15 The software that transforms the
data from one format to another is called a “codec”. In streaming, the codec’s role
is to either reduce a file’s size or convert a reduced file back to the original file.16
Second, the encoded files are uploaded to a streaming server. When requests
come from multiple clients simultaneously, streaming servers manage these
requests.17 Streaming servers are similar to a webserver, which delivers a web
page to a computer upon the request of an end-user. In general, a media player
makes the screen on which the digital content is delivered to the end-user. It
does this by creating a link to communicate with the server and rendering the
stream delivered by the server.18 Media players are mostly bundled with com-
puters and included in the purchase price. Some popular media players used for
streaming purposes are Apple’s QuickTime Player, Windows Media Player, and
RealPlayer.19 Most media players are connected to communication protocols.
Protocols set how information is exchanged between components such as the
codec and server. Most protocols used for streaming have been developed by
large software or computer companies.20
Third, when digital content is streamed, the data arrive at the end-user’s device
in small packets, which are stored in a “buffer” of RAM. After a transition period
12 Steve Mack, Streaming Media Bible (Hungry Minds, 2002) 34.

14 The data rate for a video file is called the “bit rate”. When there is a low bit rate, the data in the file
become weak, resulting in a distorted image.
16 Steve Mack, Streaming Media Bible (Hungry Minds, 2002) 13, 34.
17 Eyal Menin, Streaming Media Handbook (Prentice Hall PTR, 2003) 165.
18 Ibid 31.
19 David Austerberry, The Technology of Video and Audio Streaming (Focal Press, vol 2, 2004)
245–250.
20 The Real Time Streaming Protocol (RTSP) is an application-level network protocol that manages
and controls transfer of real time data, such as audio and video. RTSP is one of the initial stream-
ing protocols drafted by Real Networks and Netscape in the mid-90s. The Real Time Messaging
Protocol (RTMP) is an application-level network protocol for delivering on-demand, live media
to Adobe Flash applications. Initially, it was a proprietary protocol developed by Macromedia,
which Adobe later acquired in 2005. HTTP-based streaming technologies have been gradually
developed, with the introduction of Microsoft’s HTTP-based Smooth Streaming and Apple’s
HTTP Live Streaming (HLS). See: Digital Video Extraordinaire, Video Streaming Protocols: A
Brief History (December 2016) <https://www.dveo.com/pdf/Streaming-Protocols-A-Brief-His-
tory.pdf> accessed 20 August 2021.
of resetting and buffering, the content is set to play in real time.21 At this stage,
the end-user can watch or listen to the digital content on their computer screen
or analogous device. The buffering involved in streaming needs to be examined
closely, however, because it is most often misinterpreted as “caching”. A cache
can be defined as “a reserved section of main memory or an independent high-
speed storage device”.22 In contrast to caching, buffering is an innate feature of
streaming technology. A buffer comprises information that is kept in RAM for a
short period of time. The buffer space decides the temporary storage capacity; in
general, storage of two to five seconds is recommended.23 When an audio or video
file is accessed via streaming from the internet, for example, one-fifth of the file
is first loaded into the buffer and then begins to play. Because content is stored
in the buffer, this minimises the risks of losing content while running an audio or
video file, or of experiencing momentary delays. When the end-user watches or
listens to digital content, interactions can be arranged through integration with the
website.24 For example, live streaming can be enhanced with interactive functions
such as chat, polling, and power point slides. The type of interactions, however,
depends on the method of live streaming used.
2.3 Methods of Streaming and New Apparatuses

Streaming can be divided into four main methods, according to the delivery of
digital content:25 (i) unicast streaming; (ii) multicast streaming; (iii) streaming of
21 British Broadcasting Corporation, ‘What Is Streaming?’ WebWise (Web Page) <http://www.bbc

.co.uk/webwise/guides/about-streaming> accessed 24 January 2020; Melissa L Morris, ‘How
Streaming Audio and Video Change the Playing Field for Copyright Claims’ (2010) 18(1) Journal
of Law and Policy 419.
22 A cache server helps the end-user to obtain recently used information without repeating requests. It
does this by reverting the cached object instantaneously to the end-user, without the user needing
to resend the request to the original server. Caching is commonly used in different forms: browser,
memory, disk, and processor caches. In a browser cache, a web browser caches data from the web
page. For example, when a web page is visited, the browser may cache images or files, such a Java
file used by the web page. In the event that other pages of the website are visited, the browser loads
the same images or files from the cache by default, without downloading again. A memory cache
is also known as a random access memory (RAM) cache. When a computer uses an application,
some data are stored in RAM for faster retrieval than would be the case from the hard drive. A
disk cache stores the most recent programs and data; this is a standard feature of most hard disk
drives. A processor cache comprises small chunks of data, which can be retrieved quickly by the
Central Processing Unit. See: Bruce Jacob et al, Memory Systems: Cache, DRAM, Disk (Morgan
Kaufmann Publishers, 2008) 56–311.
23 Sandra Schmitz, ‘The RedTube Copyright Infringement Affair in Germany: Shame on Who?’
(2015) 29(1) International Review of Law, Computers & Technology 33–49.
24 Dan Rayburn and Michael Hoch, The Business of Streaming and Digital Media (Focal Press,
2005) 76–80.
25 CISCO, ‘Technology White Paper: IP Multi Cast’ (White Paper, October 2001) <https://www
.cisco.com/c/en/us/tech/ip/ip-multicast/tech-white-papers-list.html> accessed 12 August 2017;
Michael J Mellis, ‘Internet Piracy of Live Sports Telecasts’ (2008) 18(2) Marquette Sports Law
Review 259–284.
user-generated content; and (iv) peer-to-peer streaming. These different methods
of streaming represent the complexity of streaming technology, from which a new
wave of challenges is arriving to coincide with the debate on online copyright
infringement.
2.3.1 Unicast Streaming

Unicast streaming is designed on point-to-point protocol, where information is
sent from one device to another.26 In other words, a unicast stream sends video
or audio to a single recipient over a network. Thus, this method is recognised as
being well suited to deliver digital content through on-demand streaming. Services
based on on-demand streaming, such as Netflix, Amazon Prime, and YouTube,
use the unicast method. Thus, most unicast streams are arranged as subscription-
based streaming.27 Unicast can be costly from a bandwidth viewpoint, however,
because the sender needs to create a unique stream for every unique receiver. For
example, if five people access digital content through a unicast stream, which has
data of two megabytes (2 mb), the total cost of bandwidth is ten megabytes.
A unicast stream can be set up without much difficulty because most unicast
streaming channels are integrated with a standard home computer, television tuner
card, and broadband connection.28 Consequently, many digital content aggrega-
tors use unicast streaming to transmit unauthorised content such as sports events.
Therefore, unicast streaming has been examined in several copyright infringe-
ment cases, where it has been used to deliver live sports without the authorisation
of the copyright owners.29
2.3.2 Multicast Streaming

Multicast streaming involves end-users joining a stream by registering their inter-
est with their own router, which at that moment connects with all the other routers
back to the beginning. In other words, in multicast streaming, data are sent to
multiple recipients by one sender, with a single copy sent to those receivers.30 For
example, when digital content is distributed through streaming, a content aggre-
26 Dan Rayburn and Michael Hoch, The Business of Streaming and Digital Media (Focal Press,
2005) 76–80.
27 Seagull Haiyan Song, ‘How Should China Respond to the Online Piracy of Live Sports Telecasts?
A Comparative Study of Chinese Copyright Legislation to US and European Legislation’ (2011) 9
University of Denver Sports and Entertainment Law Journal 3, 21.
28 Ibid.
29 Michael J Mellis, ‘Internet Piracy of Live Sports Telecasts’ (2008) 18(2) Marquette Sports Law
Review 259–284; LiveNation Motor Sports, Inc v Davis (2007) WL 79311 (ND Tex Jan 9, 2007);
Order of RG McEwan, Cricket Austl v Swan (Swan 1), ScotCS (Sess Feb 3, 2006).
30 Dom Robinson, ‘The Return of Multicast: Why it Succeeds in a Live Linear World’, Stream-
ing Media (Blog Post, 20 January 2016) <http://www.streamingmedia.com/Articles/Editorial/
Featured-Articles/The-Return-of-Multicast-Why-it-Succeeds-in-a-Live-Linear-World-108621
.aspx> accessed 12 July 2021.
gator can use multicast streaming to deliver digital content simultaneously to a
large number of end-users. In technological terms, a server delivers the selected
content to an IP address on a network, permitting any end-user on that particular
network to receive the content. Hence, if five end-users access a stream simultane-
ously, the bandwidth consumed would be the same as if it were being delivered to
one.31 Throughout the development of mainstream streaming technology, increas-
ing attention is being paid to multicast streaming because it enhances connected
viewing or listening among end-users. The process of multicast is comparable
to broadcasting also, although in broadcasting, data are sent once to all devices
within a given range, regardless of whether or not such packets are received.
Because the multicast streaming method allows multiple end-users to receive
the same content in a given time, a copyrighted work can be transmitted swiftly
worldwide, depending on the functionality of the content delivery network. In
other words, a website aggregator can use multicast streaming to distribute digital
content, such as the extremely popular “free streaming”. Most websites that pro-
vide such a streaming facility use deceptive techniques, such as hiding the hosting
location.32 Thus, multicast streaming poses a challenge to copyright law because it
expands the scope of a copyright work being disseminated on the internet within a
short period of time, without the consent of the copyright owners. However, mul-
ticast streaming is not supported by most ISPs over concerns regarding bandwidth
tracking and billing; therefore, this method is generally restrained to universities
and various research institutions.33
2.3.3 User-Generated Streaming

Content aggregators and social media platforms such as YouTube,34 Twitter,35
Facebook,36 Broadcast Me,37 Wirecast Go,38 and C4 Broadcaster39 have initiated
user-generated streaming systems; these allow anybody to broadcast a video
31 Rahman Hakikur, Handbook of Research on E-Government Readiness for Information and Service
Exchange: Utilizing Progressive Information Communication Technologies (IGI Global, 31 July
2009) 137–153.
32 M Rafique et al, ‘It’s Free for a Reason: Exploring the Ecosystem of Free Live Streaming Ser-
vices’, Proceedings of the 23rd Network and Distributed System Security Symposium (February
2016) 1–15.
33 Association of Internet Security Professionals, Illegal Streaming and Cyber Security Risks: A Dan-
gerous Status Quo? Working Paper (Working Paper, Autumn 2014) <https://cryptome.org/2014
/09/illegal-streaming-malware-epoch-times-full-14-0923.pdf> accessed 30 September 2021.
34 YouTube is a video-sharing service, where users can create a user account to upload videos, and
watch and comment on other videos.
35 Twitter is an online news and social networking website, which allows users to post and interact
with messages called “tweets” that are limited to 140 characters.
36 Facebook is a social networking website, where users can post comments, share photographs and
links to news or play games, chat live, and stream live video.
37 Broadcast Me is a live-streaming application.
38 WireCast Go is a mobile live-streaming application made for Apple iPhones.
39 C4 Broadcaster is an application that allows the users to broadcast live video from anywhere.
stream over the internet. These services are mainly offered for cinematographic
films, which are created by an individual. Because streaming is predominantly
handled by everyday users, who provide streams of their own activities, this is
termed “user-generated” streaming. According to recent developments in user-
generated streaming, this is now an ordinarily provided facility in social media,
which is used mostly for actual live events or to deliver pre-recorded digital con-
tent as if in real time. It comprises two core features: (i) any user can provide a per-
sonal live stream; and (ii) the upload must occur in real time.40 New technological
advancements in streaming pose new challenges for copyright works, especially
for sporting events and gatherings, because end-users can use live streaming to
make such content public. For example, since its launch in 2015 Periscope41 has
been considered as a tool for mass copyright infringement. The mass live stream-
ing of the Mayweather–Pacquio boxing match42 is an event where Periscope was
highly criticised for user-generated live streaming.43
User-generated streaming is recognised as an imminent challenge to distrib-
uting copyright works, where it is extremely difficult to detect unauthorised
distribution of copyright works because every person equipped with a smart-
phone or similar device can become a spontaneous distributor.44 In other words,
an end-user can participate as both the viewer and distributor of a stream when
they use websites or social media platforms to access digital content produced
for streaming.
2.3.4 Peer-to-Peer Streaming

Before examining peer-to-peer streaming in detail, it is useful to discuss how
peer-to-peer file sharing developed, because peer-to-peer streaming underpins
the technological basis of peer-to-peer file-sharing technology. Peer-to-peer file
40 Jie Deng et al, ‘Internet Scale User-Generated Live Video Streaming: The Twitch Case’ (Paper
presented at 18th International Conference, NSW, Australia, 30–31 March 2017), in Mohamed Ali
Kaafar, Steve Uhlig and Johanna Amann (eds), Passive and Active Measurement (Springer Inter-
national Publishing, 2017) 60–71; Karine Pires and Gwendal Simon, ‘YouTube Live and Twitch:
A Tour of User-Generated Live Streaming Systems’ (Paper presented at 6th ACM Multimedia
Systems Conference, Mar 2015 Portland, USA) 225–230.
41 Periscope is a live-streaming application developed and owned by Twitter.
42 A boxing match between Floyd Mayweather and Manny Pacquiao, which was called the ‘Fight of the
Century’, see: Andrew Griffin, ‘Mayweather vs McGregor Streams: Free Live Feeds Spreading over
Internet Despite Anti-Piracy Attempts’, Independent (online, August 2017) <http:/www.independent
.co.uk/sport/general/boxing/mayweather-mcgregor/mayweather-mcgregor-streams-live-free-watch
-pirate-reddit-online-showtime-sky-box-office-a7910951.html> accessed 12 August 2021.
43 John Paul Titlow, ‘Periscope Cracks Down on Game of Thrones Piracy, But It’s No Copyright
Nightmare—Yet’, Fast Company (Blog Post, 13 April 2015) <https://www.fastcompany.com
/3045015/periscope-cracks-down-on-game-of-thrones-piracy-but-its-no-copyright-nightmare
-yet> accessed 12 August 2021.
44 Ramon Lobato and James Meese, Geoblocking and Global Video Culture (Institute of Network
Cultures, Amsterdam, 2016) 64–72.
sharing began with the traditional client–server model,45 with its core structure
based on server responsibilities such as data storage, indexing, and data pro-
cessing. This model was not a success, however, due to high maintenance costs
and unpredictable performance when faced with numerous client requests.46 To
solve these problems, the decentralised unstructured model was introduced.47 In
this generation of peer-to-peer file sharing, a single user can play two roles: the
receiver and the sender. The most noticeable features of decentralised file sharing
are that members of these systems are treated equally and that the contribution of
peers (or nodes) is volatile.48 The terms “node” and “peer” are used interchange-
ably to show the receiving and sending networks.49 For example, Gnutella is a
file-sharing system developed without a central server; it locates peers by their
IP addresses and file requests are made for all devices that have the Gnutella pro-
gram.50 Kazaa is a similar software system for peer-to-peer file sharing; this was
built on another technology that transforms computers in a network into “super
nodes”. These super nodes comprise files that can be shared. The Kazaa software
finds the nearest super nodes and provides referrals to other computers.51
The streaming techniques used in these software systems also foster peer-to-
peer file sharing to be performed with live or on-demand streaming.52 According
to the network structure, peer-to-peer streaming systems can be divided into
three categories: tree-based, mesh-based, and hybrid schemes.53 In a tree-based
approach, video packets are delivered to peers along a pre-arranged path. The ori-
gin is the node that first uploads the video or audio.54 Thus, a video or audio file is
distributed hierarchically along the path, similar to the parent–child relationship,
45 The client–server model is based on client requests to several servers, such as webservers, mail
servers, and file servers. If the server reacts to the request, it establishes a connection via a specific
protocol such as HTTP.
46 Aernout Schmidt, Wilfred Dolfsma, and Wim Keuvelaar, Fighting the War on File Sharing (TMC
Asser Press, vol 14, 2007), 35–60.
47 Ibid.
48 Roger Zimmermann and Liu Leslie, ‘Peer-to-Peer Streaming’, in Borko Furht (ed), Encyclopedia
of Multimedia (Sage, 2008) 708.
49 Sabu M Thampi, ‘Peer-to-Peer Video Streaming’, in Al-Sakib Khan Pathan, Muhammad Mostafa
Monowar, and Zubair Md Fadlullah (eds), Building Next-Generation Converged Networks: The-
ory and Practice (CRC Press, Taylor & Francis Group, 2013) 59.
50 Jeeva Jose, ‘Webcasting and P2P Networks: A Threat for Intellectual Property’ (2011) 2(1) Inter-
national Journal of Innovation, Management and Technology 6.
51 Ibid.
52 Liu Fangming et al, ‘Peer-Assisted On-Demand Streaming: Characterizing Demands and Optimiz-
ing Supplies’ (Pt IEEE) (2013) 62(2) IEEE Transactions on Computers 351–261; Can Zhao et al,
‘Capacity of P2P On-Demand Streaming with Simple, Robust, and Decentralized Control’ (2016)
24(5) IEEE/ACM Transactions on Networking (TON) 2607–2620; Chuan Wu, Baochun Li and
Shuqiao Zhao, ‘Exploring Large-Scale Peer-to-Peer Live Streaming Topologies’ (2008) 4(3) ACM
Transactions on Multimedia Computing, Communications, and Applications (TOMM) 19.
53 Ahmet Kondoz and Tasos Dagiuklas, 3D Future Internet Media (Springer New York, vol 1, 2013)
113–123.
54 Information Resources Management Association, Digital Arts and Entertainment: Concepts,
Methodologies, Tools, and Applications (IGI Global, 2014) 169.
with a continuous flow of information accomplished from the parent node to the
child peers.55 The main purpose of using a tree-based structure for file sharing
in streaming is to maximise the bandwidth to the root of the nodes. Audio-Peer,
Yoid, and HMTP are some streaming systems built using tree-based structures.56
In the mesh-based approach, peers are interconnected with each node. In other
words, within the system, the relationships of nodes are open, where nodes act
as neighbours. As a result, the information flow is not disrupted, even if a node
leaves the system. Cool Streaming,57 PPLive,58 and SopCast59 are some examples
of systems using the mesh-based approach.60 Some streaming systems use both
mesh- and tree-based models; these are called hybrid schemes.
Most streaming websites use the peer-to-peer model to deliver unauthorised
content because network bottlenecks and traffic failures can be managed effec-
tively. Among the advantages of peer-to-peer streaming are the reduction of band-
width, fast stream start-up times, and high-quality video; these have strengthened
the use of peer-to-peer streaming. However, most illegal streaming websites use
a “torrent”61 peer-to-peer model, so end-users can easily obtain digital content
from peers. For example, Popcorn Time62 launched its illegal streaming app based
on peer-to-peer file sharing.63 In 2015, BitTorrent64 inventor Bram Cohen was
granted a patent for his peer-to-peer live streaming platform, from which he intro-
duced a new strategy to stream to an audience of millions at minimal cost.65 The
56 Roger Zimmermann and Liu Leslie, ‘Peer-to-Peer Streaming’, in Borko Furht (ed), Encyclopedia
of Multimedia (Sage, 2008) 50.
57 CoolStreaming has been developed as a peer-to-peer television technology that enables users to
share television content with each other over the internet <www.coolstreaming.com> accessed 12
August 2021.
58 PPLive is a Chinese video-streaming website that provides peer-to-peer live streaming.
59 SopCast has been developed as a free way to broadcast video and audio, or to watch videos and
listen to radio on the internet, using peer-to-peer technology <www.sopcast.com> accessed12
August 2020.
61 Torrent has been designed as peer-to-peer file sharing protocol. A “Torrent” file can be transferred
between computers or similar devices without needing a centralised server.
62 Popcorn Time has been developed as a multi-activity platform, which is based on BitTorrent-
streaming, from which users access free digital content.
63 Nick Stat, ‘Popcorn Time For Your Browser Makes Illegal Movie Streaming Even Easier’, The
Verge (October 2015) <https://www.theverge.com/2015/10/19/9571359/popcorn-time-online
-browser-version-streaming> accessed 12 July 2021.
64 BitTorrent is a communication protocol for peer-to-peer (P2P) file sharing, which is designed to
distribute data and electronic files over the internet.
65 Max Michael, ‘BitTorrent Inventor Granted Streaming Patent’, Tech Raptor (Blog Post, 3 August
2015) <https://techraptor.net/content/bittorrent-inventor-granted-streaming-patent> accessed 10
July 2021.
trend of using peer-to-peer streaming websites has been popularised by sports
websites, which use peer-to-peer streaming without authorisation of the content
owners, including myp2p.ec, Freefootballp2p, and Firstrow Sports.66 As viewers
or listeners attempt to access sport events live, peer-to-peer architecture has been
effective for live-streaming purposes.
Unsurprisingly, the nature of peer-to-peer file-sharing technology has implica-
tions for copyright law, because it allows for the distribution of a file from one
end-user to another. The challenges faced by copyright law in response to peer-
to-peer file-sharing technology have been examined from its inception, as pio-
neered by Napster,67 a website that enabled the exchange of music files.68 Because
peer-to-peer streaming also deploys some features of peer-to-peer file sharing,
it enables end-users to distribute live events to peers. In so doing, peer-to-peer
streaming poses a challenge to copyright law: for end-users who use peer-to-peer
streaming to distribute digital content, the question arises whether those distribu-
tions or public performances are authorised by the copyright owners or otherwise
permitted under copyright law.
2.3.5 Streaming-Enabled New Apparatuses

Smart handheld devices such as set-top boxes (STBs), powerful game consoles,
and streaming sticks (HDMI sticks) are the most popular devices for receiving
multi-digital content. Conventionally, STBs transform a digital television signal
to analogue for viewing on a television, or they can facilitate watching cable or
satellite television. Yet, these new generation STBs and similar devices enable
streaming because they can be easily operated with their “Plug and Play”69 capa-
bility (pre-installed software).70 As a result, the legality of selling and using set-
top streaming boxes and similar devices to access digital content has become a
thorny issue, due to the different types, software, and uses available. Recently,
the issue of streaming digital content via STBs and similar devices has worsened,
because end-users can modify their devices to receive content freely. For exam-
ple, Kodi, formerly known as XBMC, is an open-source media player that permits
66 These websites are well structured because the end-user can watch sports by choosing their pre-
ferred category. See: Michael J Mellis, ‘Internet Piracy of Live Sports Telecasts’ (2008) 18(2)
Marquette Sports Law Review 259–284.
67 A&M Records, Inc v Napster, Inc, 239 F.3d 1004 (2001).
68 Guy Douglas, ‘Copyright and Peer-to-Peer Music File Sharing: The Napster Case and the Argu-
ment Against Legislative Reform’ (2004) 11(1) Elaw Journal: Murdoch University Electronic
Journal of Law 1; see also: Alain Strowel, Peer-to-Peer File Sharing and Secondary Liability in
Copyright Law (Edward Elgar Publishing, 2009) 43–70.
69 This is a standard for connecting peripherals to personal computers or other devices, whereby a
device only needs to be linked to a computer to be arranged to work faultlessly.
70 Shih Hsuan Yang, Tzu Huang, and Ching Ming Tien, ‘Set-Top Boxes Providing Adaptive Stream-
ing Services for Multiple Mobile Devices’, 2017 IEEE International Conference on Consumer
Electronics—Taiwan (ICCE-TW) (12–14 June 2017).
end-users to watch digital content on their PCs, STBs, smartphones, and tablets.71
Add-ons or plug-ins provide access to a large amount of digital content for free,
which is hosted without the permission of the copyright holders.
Technologically advanced apparatuses, such as STBs and similar devices, are
outpacing current copyright law in two ways: first, they question the scope of the
copyright owner’s control over end-users in a streaming environment; and sec-
ond, they raise new impediments to copyright owners’ attempts to reduce copy-
right infringement in the online environment.
2.4 Streaming as an Access and Dissemination-Based

Phenomenon
Given the fast pace of technological developments regarding the internet, end-
users are often enthused to follow novel tactics offered by technology.72 In light
of the different methods used in streaming, it should be noted that streaming has
changed the manner of accessing digital content in two ways. First, the non-down-
loading feature of streaming encourages end-users to access digital content with-
out retaining a copy. Second, streaming with the assistance of other web tools,
such as Tor73 or VPNs,74 fosters anonymous use. Thus, the non-downloading fea-
ture of and anonymous access to streaming can be recognised as major techno-
logical advancements, which challenge copyright law through facilitating both
access- and dissemination-based use.
2.4.1 Non-Downloading Feature of Streaming

Streaming allows instant access to digital content without needing to wait for
downloading content to devices.75 For many years, downloading was the main
source of obtaining digital content. The term “downloading” can be defined
as “transferring data from the internet to a computer or from one computer to
another”.76 The act of transferring data involves an exact remaking of works
available on the internet, such as pictures, video, audio, images, graphics, and
other types of works. Thus, downloading is essentially copying a particular
work. If a person wants to listen to a musical work from a website or another
computer, for example, the musical work may be downloaded to any device.
71 Digital TV Europe, ‘Sandvine: 70% of Kodi Boxes Set Up for Pirated Content’ Digital TV Europe
(Online, 5 May 2017) <http://www.digitaltveurope.com/2017/05/05/sandvine-70-of-kodi-boxes
-set-up-for-pirated-content/> accessed 12 January 2021.
72 Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Free-
dom (Yale University Press, 2006) 54–60.
73 Tor is free software that enables anonymous communication.
74 VPNs allow end-users to create a secure connection to another network over the internet, without
been monitored by internet service providers.
75 T Hartsell and S Yuen, ‘Video Streaming in Online Learning’ (2006) 14(1) AACE Journal 31–43.
76 Marcel Danesi, Dictionary of Media and Communications (Routledge, 2009) 102.
After downloading is completed, the downloader can access the song at any
time because a copy of the musical work sits on the hard drive of their computer
or other device. Downloading also allows the end-user to re-access, reuse, and
even modify the work.77
When access to the internet was not easily available, end-users sought to retain
the content before using it. For example, a cinematographic film could not be
accessed at any time over the internet before streaming services were introduced
to the internet; thus, the end-user would make a copy, mostly obtained through a
file-sharing method or downloading from the internet. Often, these copies were
preserved on the end-users’ personal computers. Generally, by storing a digital
copyright work such as a cinematographic film on a computer hard drive, it can
be played promptly and be retrievable or transferable to a second computer at
any future time.78 Conversely, today’s end-user can access any copyright work,
such as a cinematographic film, at any time, provided that the work is available
on the internet and adapted for use through streaming technology. Given the ever-
present feature of digital content, the need for storing digital content, in particular,
by having a durable or transferable copy, has decreased dramatically.
In contrast to downloading, streaming does not allow the end-user to keep cop-
ies of a work. With streaming, the process of accessing the work is in real time. If
the end-user wants to access it again, the work may not be available. For example,
if an end-user watches the television broadcast of a football game via live stream-
ing, that particular video may not be available to watch again, unless it has been
stored on a server for on-demand streaming. Moreover, streaming does not allow
the end-user to reuse the digital content themselves, unless it has been captured
with specific software to convert the digital content to a stable file format. This
is due to the buffering process in streaming. Because a buffer comprises informa-
tion kept in RAM for a short amount of time, when an end-user accesses an audio
or video file via internet streaming, one-fifth of this file is loaded first into the
buffer before it begins to play.79 Having the content stored in the buffer minimises
the risks of losing content while running an audio or video file, or experiencing
momentary delays.80
The buffer copies, which are grounded in the non-downloading feature of
streaming, have been an immense enticement for end-users who access digital
77 James Mason and Jared Wiercinski, ‘Music in the Digital Age: Downloading, Streaming and Digi-
tal Lending’ (2010) 38(1) CAML Review/Revue de l’ACBM 5–16.
78 Joe Donnini, ‘Downloading, Distributing, and Damages in the Digital Domain: The Need for
Copyright Remedy Reform’ (2013) 29(2) Santa Clara High Technology Law Journal 413; see
also: Christophe Geiger, ‘Legal or Illegal? That Is the Question! Private Copying and Download-
ing on the Internet’ (2008) 39(5) International Review of Intellectual Property and Competition
Law 597–603.
79 Steven Foley, ‘Buffering and the Reproduction Right: When Is a Copy a Copy?’ (2010) 1(1) Cyba-
ris Intellectual Property Law Review Art 4.
80 Steve Mack and Dan Rayburn, Hands-on Guide to Webcasting: Internet Event and AV Production
(Elsevier/Focal Press, 2006) 17–29.
content through streaming. This is because the end-user does not have to keep a
long-lasting copy on their computer or similar device. Instead, the end-user can
merely watch or listen to the digital content without downloading it. This techno-
logical change has thus transformed the end-user’s method of using the internet.
The non-downloading feature of streaming has raised a question in copyright
law, regarding the scope of the right of reproduction in the streaming process.
In other words, the issue is whether or not the end-user’s act of merely access-
ing digital content through streaming creates a copy of that digital content. An
in-depth analysis is needed to determine whether there is infringement by taking
a substantial part of a copyright work in the process of streaming. This will be
developed in the prospective chapter.
2.4.2 Anonymity as a Stimulus to Use Streaming

End-users often use anonymous or pseudonymous communication for internet
browsing. The common belief is that the end-user’s activity is difficult to trace
when the act is conducted anonymously or pseudonymously. Anonymity facili-
tates unlawful activity, in particular, by creating the perception that, through ano-
nymity, the end-user cannot be held liable for their actions.81 Anonymous internet
use is not unique to streaming technology because it is also used for file sharing.82
However, new applications enable communication through streams while stay-
ing anonymous.83 Furthermore, anonymity is often used in peer-to-peer stream-
ing, because it is difficult for copyright owners to chase end-users at any given
time. Detecting a copyright work that is being disseminated through anonymous
users is conducted in three main ways: first, the work can be detected when it is
made available through pre-emptive detection filtering; second, it can be revealed
through examining the internet after it was made available; and, third, it can be
detected via network monitoring at the time when it is being transmitted by end-
users.84 As with the non-downloading feature of streaming, the ability to act anon-
ymously has an encouraging effect on end-users who are using streaming to access
digital content. In fact, anonymity encourages this “access only” nature because
it allows end-users to hide their identity while using streaming. Therefore, ano-
nymity, it can be argued, has vastly assisted end-users to merely enjoy access to
81 T J McIntyre, ‘Online Anonymity: Some Legal Issues’ (2004) (11) Commercial Law Practitioner 90.
82 Ibid; Akash Sachdeva and Jonathan McDonald, ‘The Use of Norwich Pharmacal Orders to Identify
Online Infringers—An Old Remedy Updated for Modern Times’ (2013) 24(3) Entertainment Law
Review 103–106.
83 Sarah Perez, ‘Dusk’s New App Lets You Live Stream Anonymously’, Tech Crunch (Online,
30 November 2016), <https://techcrunch.com/2016/11/30/dusks-new-app-lets-you-live-stream
-anonymously/> accessed 12 June 2021.
84 Alexandre M Mateus, ‘Copyright Violation on the Internet: Extent and Approaches to Detection
and Deterrence’ (PhD Thesis, Carnegie Mellon University, 2011) 23–24 <http:/repository.cmu.edu
/cgi/viewcontent.cgi?article=1051&context=dissertations> accessed 12 August 2021.
copyright works instead of downloading content to make durable copies on their
personal computers and similar devices.
To hide their identities while streaming, many end-users connect to the internet
through VPNs. In so doing, ISPs are unable to observe traffic coming through the
IP address assigned to an end-user’s modem. Because VPNs hide internet users’
exact locations and secure their anonymity, end-users use VPNs to access stream-
ing websites that have geo-blocked digital content. The act of circumventing a
geo-block to stream digital content raises a pivotal question as to whether the use
of VPNs to access digital content is a copyright infringement.
2.5 Conclusion
By examining the technology involved in streaming, this chapter found that
streaming involves several technological components. The central methods of
streaming—unicast, multicast, peer-to-peer, and user-generated streaming—
were investigated, identifying their differences and the challenges they pose to
copyright law. In addition, this chapter recognised the main factors, including
the non-downloading feature and anonymity, from which streaming formulates
a change in end-user engagement from copy-based to access- and dissemina-
tion-based use. This chapter provided an examination of streaming in its techno-
logical context, which can contribute substantially to the identification of grey
areas regarding copyright law and streaming, to be discussed in the subsequent
chapters of this book.
3 The Impact of Copyright
Law on Streaming
3.1 Introduction
This chapter analyses whether an act of streaming constitutes a copyright infringe-
ment. For the purpose of this analysis, two fundamental rights are examined: (i)
right of reproduction, and (ii) right of communication to the public. To analyse
right of reproduction and right of communication to the public within the context
of streaming, this chapter is divided into two parts. Part I examines how digital
content used in streaming qualifies for copyright protection in Australia. In Part I,
the liability of copyright infringement that moves in different directions, such as
from direct liability to indirect liability, is also examined. Part II examines two
issues regarding streaming from the perspective of end-users: first, whether an
act of streaming to access digital content is an infringement of the right of repro-
duction; and second, whether copyright owners’ right of communication to the
public is infringed when end-users use streaming distribution methods such as
peer-to-peer streaming. In Part II, Australia’s approach regarding right of repro-
duction and right of communication to the public within the context of streaming
is compared to the approaches taken by the USA and the EU. Such comparison,
in particular, the strengths and weaknesses of each approach, can be instructive
to Australian lawmakers to recognise the strengths and weaknesses of current
copyright law.
PART I: COPYRIGHT IN DIGITAL CONTENT AND EVOLVEMENT

OF LIABILITY FOR COPYRIGHT INFRINGEMENT
3.2 Copyright Protection for Digital Content That Is Streamed

As a real-time phenomenon, streaming relates to a wide range of digital content,
including video clips, movies, television shows, sports, ceremonial events, and
music. All of these aforementioned genres of digital content are specified under
Part IV of the Copyright Act1 as “subject matter other than works” and categorised
1 Copyright Act 1968 (Cth) ss 84–87.
DOI: 10.4324/9781032260938-3
The Impact of Copyright Law on Streaming 25
under four types: (i) sound recordings, (ii) cinematographic films, (iii) sound and
television broadcasts, and (iv) published editions of works. In this book, however,
only three categories are considered: sound recordings, cinematographic films,
and sound and television broadcasts. Published editions of works2 are not con-
sidered because they cannot be used for streaming. Thus, when this book refers
to “subject matter other than works”, this specifies digital content that is used for
streaming purposes only. Another significant issue that needs to be examined is
what requirements must be satisfied for “subject matter other than works” to be
eligible for copyright protection. For copyright to exist in “subject matter other
than works”, there are three main requirements: (i) recognition of subject matter,
(ii) requirement of connection with Australia, and (iii) authorship and original-
ity. Scrutiny of how the copyright protection is accorded to “subject matter other
than works” reveals how copyright law has recognised entrepreneurial copyright
works, which have given rise to controversial issues with the use of new technolo-
gies such as streaming.
3.2.1 Recognition of Subject Matter

In Australia, copyright protection is granted while dividing copyright-protected
materials into two categories—“works” and “subject matter other than works”—
which have been stipulated under Parts III and IV of the Copyright Act. Under the
first category, “works”, copyright protection is accorded to literary, dramatic or
musical works, artistic works, and computer programs. As mentioned above, the
second category—“subject matter other than works”—is recognised in Part IV.
As explained in Chapter 1, this chapter examines only “subject matter other than
works” that is predominantly used in streaming.
The first type of subject matter protected under “subject matter other than
works” in Part IV is sound recordings.3 According to section 10 of the Copyright
Act, a sound recording is defined as “the aggregate of the sounds embodied in a
record”.4 In this definition, the term “record” means “a disc, tape, paper, elec-
tronic file or other device in which sounds are embodied”.5 In Polygram Records
Inc & Anor v Raben Footwear Pty Ltd,6 Foster J explained the process of creating
a sound recording of a musical work as follows:7
The process begins in a studio where the various musicians perform their
music. This performance is recorded by a recording technician onto some
2 Copyright Act 1968 (Cth) s 88; Under this category, the exclusive right to make a facsimile copy
of the edition has been granted for the published edition of a literary, dramatic, musical, or artistic
work, or of two or more literary, dramatic, musical, or artistic works.
3 Copyright Act 1968 (Cth) s 85.
4 Ibid s 10.
5 Ibid.
6 [1996] FCA 79.
7 Ibid.
26 The Impact of Copyright Law on Streaming
form of recording medium, previously a “reel to reel” tape, but now more
likely to be some form of digital recording equipment as the recording
medium has several “tracks”.
Foster J clearly explains that a sound recording is made by embodying sound

in such a way that the sound can be reproduced. Thus, the recording of sound is
recognised within a wide range of materials, from analogue vinyl discs to digital
formats such as MPEG-2 Audio Layer III (MP3). A recording of a sound can
either be instantaneously delivered to an end-user by means of live streaming or
stored in a server for on-demand streaming.
Another type of subject matter recognised in Part IV of the Copyright Act
is cinematographic films. According to section 10 of the Copyright Act, a cin-
ematograph film is “[the] aggregate of the visual images embodied in an article or
thing so as to be capable by the use of that article or thing” with the ability to be
shown as a moving picture.8 In Sega Enterprises v Galaxy Electronics,9 Burchett J
broadened the concept of cinematographic film by comparing Virtua Cop, a com-
puter game, to a cinematographic film. Because Virtua Cop was rendered from
a 3D representation, the issue was whether it could be considered as an actual
cinematographic film, which is often stored on a magnetic tape. While Burchett J
commented that Virtua Cop was not characterised in any form until it was shown
on the screen where the video was animated, it was held that the video game could
produce video imagery and soundtrack and, therefore, it could be considered a
cinematographic film. Given this broad interpretation, all digital content used in
streaming that comprises video, except television broadcasts, can be considered
as cinematographic films within the context of streaming; thus, they are protected
under the Copyright Act.
The Copyright Act recognises copyright in “television broadcasts” and “sound
broadcasts” as a third type of subject matter.10 A television broadcast has been
defined as “visual images broadcast by way of television, together with any
sounds broadcast for reception along with those images”.11 Likewise, a sound
broadcast has been defined as “sounds broadcast otherwise than as part of a televi-
sion broadcast”.12 Notably, a broadcast has been construed to mean “a communi-
cation to the public delivered by a broadcasting service within the meaning of the
Broadcasting Services Act 1992 (Cth) (herein after referred to as the Broadcasting
Services Act)”.13 According to this definition, a broadcast falls within the right of
“communication”, and the term “communicate” has been defined in the Copyright
Act as to “make available online or electronically transmit a work or other subject

9 [1996] FCA 761.
11 Ibid.
12 Ibid.
13 Ibid s 10.
matter, including a performance or live performance”.14 As the definition of a
“broadcast” refers to the Broadcasting Services Act, it is also important to recog-
nise the meaning of a broadcasting service. Accordingly, a broadcasting service
has been construed as
a service that delivers television programs or radio programs to persons hav-

ing equipment appropriate for receiving that service, whether the delivery
uses the radiofrequency spectrum, cable, optical fibre, satellite or any other
means or a combination of those means.15
Despite sound recordings and cinematographic films being used in streaming, tel-
evision and sound broadcasts have gained more attention through retransmission
or simultaneous broadcasts. Moreover, television and sound broadcasts are con-
sidered to be the digital content used overwhelmingly for streaming, in particular,
live streaming.16 Unlike traditional broadcasting, internet broadcasting only needs
streaming software to disseminate content. Most live-streaming software suc-
ceeds in delivering live video or audio instantly over the internet. Because inter-
net dissemination has become the newest mode of broadcasting after progressing
through television, cable, and satellite broadcasting, the question arises whether
this can be legally defined as “broadcasting”.
Although dissemination has been reviewed when examining the scope of
broadcasting, no global consensus exists with regard to recognising internet
broadcasting such as live streaming as broadcasting.17 Internet dissemination is
often activated upon the end-user’s request. As a result, it does not amount to
broadcasting because “the transmission for public reception” feature, which was
globally accepted through the Rome Convention (1964),18 does not occur when
end-users request signals to be transmitted.19 In 2000, a ministerial determination
excluded the following from the definition of broadcasting: “a service that makes
14 Ibid.
15 The definition, however, does not include a service that provides data or text only; or a service that
makes programs available on demand on a point-to-point basis, including a dial-up service; or a
service (or class of services) that the Minister determines.
16 The Economist, ‘The Future of Television Streaming on Screens Near You’ The Economist (Online,
20 August 2016) <http://www.economist.com/news/business/21705353-can-netflix-stay-atop-new
-broadband-based-television-ecosystem-it-helped-create-streaming> accessed 12 May 2021.
17 The Berne Convention for the Protection of Literary and Artistic Works 1886 (Berne Convention)
has allowed its member states to determine the limitations to the right of broadcasting; see: Berne
Convention for the Protection of Literary and Artistic Works, opened for signature 9 September
1886 (entered into force 5 December 1887) art 11bis (2). According to Article 3(f) of the Interna-
tional Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations (1964) (Rome Convention), broadcasting has been defined as “the transmission by
wireless means for public reception of sounds or of images and sounds”.
18 International Convention for the Protection of Performers, Producers of Phonograms and Broad-
casting Organizations (1964) opened for signature 9 September 1961 (entered into force 5 Decem-
ber) 1964.
19 Megumi Ogawa, Protection of Broadcaster’s Rights (Martinus Nijhoff, 2006) 69.
available television programs or radio programs using the internet, other than a
service that delivers television programs or radio programs using the broadcasting
services bands”.20 According to this determination, streaming television programs
cannot be considered as broadcasting.
In Phonographic Performance Company of Australia Ltd (PPCA) v
Commercial Radio Australia Limited (CRA),21 the issue under question was
streaming radio programs. PPCA is a copyright collecting society, whereas CRA
is the industry body representing commercial radio broadcasters in Australia. The
issue was whether the existing licensing arrangements between PPCA and CRA,
and the latter’s members, included the simultaneous broadcast and streaming of
radio programs via the internet. PPCA’s argument was that streaming provided
a separate communication to the public and was not incorporated in the agree-
ment. CRA reasoned that the simultaneous streaming of radio programs was cov-
ered by the agreement. Significantly, the agreement between PPCA and CRA
was executed before the amendments to the Copyright Act, which introduced the
technology-neutral right of “communication to the public”. Thus, the definition
of broadcast was one of the decision’s major concerns. Foster J held that, pur-
suant to section 85(1)(c) of the Copyright Act, sound recordings fell within the
licence provided by the industry agreement. As appealed by PPCA, however, the
issue was whether the definition of “broadcasting service” was as revised by a
ministerial determination on 12 September 2000. The ministerial determination
omitted a service from its definition of “broadcasting service” if the broadcast
made programs accessible via the internet. The main question was whether or not
this definition covered the streaming of online radio programs; if it did, stream-
ing was incorporated in the agreement. PPCA argued that the radio program’s
online streaming was a unique and separate broadcast, which was in breach of the
agreement. In response to PPCA’s argument, CRA contended that the definition
of “broadcasting service” subsumed streaming and related directly to the radio
program. Overturning the decision of Foster J, the Full Court unanimously upheld
PPCA’s appeal and established that the online broadcast of radio programs was a
distinct service, which was not within the scope of the licence granted under the
industry agreement.
The Full Court decision in the Phonographic Performance Company of
Australia Ltd case22 has notable effects for new technologies such as live stream-
ing. The decision explains how digital content delivery platforms should be
recognised in situations where the content is delivered simultaneously to other
content on broadcasting services. According to this clarification, a live-streaming
simulcast of digital content could not, therefore, be characterised as a broadcast.
20 Federal Registrar of Legislation, Commonwealth of Australia Gazette, No GN 38, (25 September

2002) <https://www.legislation.gov.au/file/2002GN38> accessed 10 February 2021.
21 [2012] FCA 93.
22 [2013] FCAFC 11.
In a similar development to that of the Phonographic Performance Company
of Australia Ltd case, a question that arose in Win Corporation v Nine Network
Australia Pty Ltd23 was whether the term “broadcast” includes live streaming on
the internet, as stipulated in the Program Supply Agreement (PSA) between Win
Corporation (WIN) and Nine Network Australia Pty Ltd. Under the PSA, WIN
had been granted an exclusive licence to broadcast Nine Network programs in
WIN licence areas. In October 2015, Nine Network expected to launch 9Now, an
online service allowing the public to stream Nine Network’s programming live
or on-demand via the internet. This service allowed people to access the 9Now
service online, irrespective of their location in Australia. In February 2016, WIN
commenced legal action against Nine Network for breach of their PSA. Clause
2.1 of the PSA was examined to determine whether live streaming via 9Now
amounted to broadcasting within the meaning of the PSA. Although this case
focused on streaming, the definition of broadcast within the PSA was examined,
thus creating a contractual dispute. The Court held that live internet streaming is
not “broadcasting” within the meaning of the PSA. Even if the interpretation of
the meaning of “broadcast” as decided in this case does not apply widely to other
instances of broadcast, subsequent to this decision, the significance of amend-
ing Australia’s existing media law regulation has been recognised.24 Discussion
on the substance of copyright in internet transmission has not been adequately
addressed until now, however, although its significance has been recognised.25
Both the Commercial Radio Australia Limited (CRA)26 and Nine Network
Australia Pty Ltd27 decisions are likely to have significant impacts for content
owners, broadcasters, and even end-users. Despite the judicial pronouncements
being based on contractual arrangements, it is worthwhile to mention that exclud-
ing internet broadcasting has challenged the traditional boundaries of sound and
television broadcasts, while creating uncertainty as to how they should be treated
23 [2016] NSWSC 523.

24 See: Michael Swinson and Helena Kanton, ‘Media Law Reform in 2016: How Much Is Enough?’
(2016) 3(3) Media, Technology and Communications Law Bulletin 31; Broadcasting Legislation
Amendment (Media Reform) Bill 2016 <https://www.aph.gov.au/Parliamentary_Business/Bills
_LEGislation/Bills_Search_Results/Result?bId=r5635> accessed 12 June 2021.
25 Australian Law Reform Commission, Copyright and the Digital Economy (ALRC Report 122)
(2013) <https://www.alrc.gov.au/publications/copyright-report-122> accessed 12 May 2021;
Internet Industry Association Submission to Australian Law Reform Commission Discussion
Paper (DP) 79, Copyright and the Digital Economy (July 2013) <https://www.alrc.gov.au/sites/
default/files/subs744._orginternet_industryassociation.pdf> accessed 14 June 2021. The Internet
Industry Association further states:
transmission over the internet should include any transmission whether or not it is to one or
more recipients and whether or not it is received by the recipients at exactly the same time.
This condition is important because increasing streamed services over the internet are both
pre-programmed and customised to the user’s preferences.
26 [2012] FCA 93.

27 [2016] NSWSC 523.
in the online environment. From an end-user perspective, end-users are often not
aware whether or not the content they access is broadcast; perhaps, such lack of
awareness aggravates unauthorised use regarding digital content.
3.2.2 Requirement of Adequate Connection with Australia

To obtain copyright protection for a work in Australia, the work needs to have
an adequate connection with Australia. This requirement has been created to
serve the principle of territoriality.28 By formulating an adequate connection with
Australia, a copyright work is made within specified criteria associated with that
particular territory.29 In other words, when “subject matter other than works” is
made with the involvement of an Australian resident who is a “qualified person”,
or is first published in Australia, or is made in Australia under a licence, such
works are considered to have adequate connection with Australia. However, as
expressed in Part IV of the Copyright Act, “subject matter other than works” is
eligible to receive reciprocal protection in accordance with international treaty
arrangements such as the Berne Convention.30 Equal treatment has been assured
under Part VIII of the Copyright Act.31 Notably, equal treatment has stemmed
from “national treatment”,32 which is also known as the “principle of reciproc-
28 This means that the existence, content, and expiry of copyright are subject to the law of the country
in which the use or infringement occurs. Hence, a copyright holder does not own one worldwide
copyright; see: Graeme B Dinwoodie, ‘Affirmation of Territorial Limits of US Copyright Protec-
tion: Two Recent Decisions’ (1992) 14(4) European Intellectual Property Review 136–139; see
also: Thomas Dreier, ‘Copyright in the Times of the Internet—Overcoming the Principle of Ter-
ritoriality within the EU’ (2017) 18(1) ERA Forum 7.
29 Copyright Act 1968 (Cth) ss 84, 89, 90, 91; e.g., in relation to sound recordings, copyright subsists
if the “maker was a qualified person at the time when the recording was made”. According to the
Copyright Act 1968 (Cth), a “qualified person” could be “an Australian citizen or a person resident
in Australia” or “a body corporate incorporated under a law of the Commonwealth or of a State”.
Moreover, the copyright of a sound recording can be established if the recording was made in
Australia or, in terms of a published sound recording, if first publication of the recording occurred
in Australia. As with a sound recording, copyright subsists in a “cinematograph film of which the
maker was a qualified person for the whole or a substantial part of the period during which the
film was made”. There are two other occasions where copyright subsists: first, if a cinematograph
film was made in Australia; and second, in relation to a published cinematograph film, if the first
publication of the film took place in Australia. Copyright protection is provided for a television or
sound broadcast if they are made from a place in Australia under a licence or a class licence that is
given under the Broadcasting Services Act 1992 (Cth), by the Australian Broadcasting Corporation
(ABC), or by the Special Broadcasting Service Corporation (SBS).
30 Berne Convention for the Protection of Literary and Artistic Works, opened for signature 9 Sep-
tember 1886 (entered into force 5 December 1887) art 5.
31 Copyright Act 1968 (Cth) ss 184–188.
32 National treatment attempts to solve a problem of worldwide protection for creative inventors and
authors. Contrary to the principle of territoriality through national treatment, under which a treaty
member, in harmony with nationals of other member states, provides the same treatment it accords
its own nationals. See: Robert Brauneis, ‘National Treatment in Copyright and Related Rights:
How Much Work Does It Do?’ (2013) GW Law Faculty Publications & Other Works Paper 810;
ity” that allows countries to apply their own laws for issues, while extending
protection to non-nationals on the same terms as for their own nationals.33 Within
the context of streaming, national treatment is significant given the omnipresent
nature of streaming, through which end-users can access digital content over the
internet from any part of the world. Yet, based on this requirement to have ter-
ritorial connection, infringements over the internet regarding streaming need to
be dealt with under the legal systems of all countries from which the work can be
accessed. For example, a streaming server can be placed in one country, whereas
copyright infringement by reproduction takes place in another country, and copy-
right content can be distributed in several other countries. All of the digital content
of Australia and other nations used for streaming receives copyright protection,
either fulfilling adequate connection with Australia or through national treatment.
3.2.3 Authorship and Originality

When the distribution of copyright works through the digital medium was initi-
ated, mostly over the internet, the entrepreneur was given the role of author; as
such, they controlled both the creative and distributive functions of copyright.
However, it is noticeable that the criteria used for classical copyright, such as
“authorship” and “originality”, have not been used in association with the entre-
preneur-based copyright works used for streaming.
Although the requirement for authorship is not directly specified in the
Copyright Act in relation to “subject matter other than works”, it emphasises
the “maker” of such works. Sections 22(3)(b), 22(4)(b), and 22(5), respectively,
define how the “maker” is identified in terms of sound recordings, cinemato-
graphic films, broadcasts, and other communications. For example, the maker of
a sound recording is the person who owned the record at that time, whereas the
maker of a cinematographic film is the person who leads the production process
of the first copy of the film. Similarly, regarding a cinematograph film, “maker”
means the director, producer, and screenwriter of the film.34 It can be argued that
the term “maker” has been incorporated with the purpose of addressing the com-
mercial aspects.
Despite the absence of the requirement of authorship, the concept of owner-
ship is considered in Part IV. According to section 22 of the Copyright Act, the
Kamperman Sanders, The Principle of National Treatment in International Economic Law: Trade,
Investment and Intellectual Property (Edward Elgar, 2014) 1–20.
33 The obligation of national treatment has been emphasised in multilateral treaties concerning copy-
right and related rights, e.g., Berne Convention for the Protection of Literary and Artistic Works,
opened for signature 9 September 1886 (entered into force 5 December 1887) art 5(1), 5(3); Inter-
national Convention for the Protection of Performers, Producers of Phonograms and Broadcast-
ing Organizations (1964) opened for signature 9 September 1961 (entered into force 5 December)
1964, arts 2, 4, 5, 6; Agreement on Trade-Related Aspects of Intellectual Property Rights (1994),
opened for signature 1994 (entered into force 1 January 1995) art 3.
“maker” of subject matter other than works plays a prominent role regarding own-
ership. Section 22 needs to be examined, along with sections that specify the own-
ership of copyright in subject matter other than works.35 Sections 97(2), 98(2),
and 99(2) of the Copyright Act state, respectively, that the “maker” of a sound
recording, cinematograph film, and television and sound broadcast is the owner
of such subject matter. Within the context of streaming, therefore, it is apparent
that the makers of digital content essentially own the digital content. However,
it can be argued that both “maker” and “author” have been equally treated in the
Copyright Act. The difference between an “author” and a “maker” cannot be rec-
ognised, because what an author is remains undefined in the Copyright Act, except
for an author of photographs. Nevertheless, at lowest, an “author” is the person
who brings the copyright work into existence in its material form.36 As pointed
out by Jani McCutcheon, no one can discuss authorship in isolation, because the
requirement of originality is correlative and an “author is most remarkably the
source of originality, a foundation of copyright subsistence”.37 Approximately a
century earlier, a decision of the Australian High Court highlighted the relation-
ship between “originality” and authorship, where it mentioned that the words
“author” and “original” are correlative.38 Clearly, when the term “authorship” is
not adopted for “subject matter other than works”, the existence of originality has
been distrusted. As a result, the concept of originality does not apply to “subject
matter other than works” in Part IV of the Copyright Act.39 Although “subject
matter other than works” has not been treated through the classical “authorship–
originality”, the Copyright Act permits vesting copyright in the “maker” of digital
content that is used for streaming. As Sam Ricketson has stated, the formulations
of rights in the Copyright Act have been maintained with a historic “international
conventions” approach; hence, it has established categories of works (called “orig-
inal creations”) and other subject matter or neighbouring rights (called “derivative
productions”).40 When Part IV of the Copyright Act assigns the rights contrary to
Part III, for instance, from the creators to a producer or other persons, who have
undertaken the arrangements of copyright material, it disregards the requirement
of originality.
35 Ibid ss 97–100.
36 Ice TV Pty Limited v Nine Network Australia Pty Limited (2009) 239 CLR 458, 494 [98] (Gum-
mow, Hayne and Heydon JJ), quoting Hugh Laddie, Peter Prescott, and Mary Vitoria, The Modern
Law of Copyright (Butterworths, 1980) 243 [6.6]; see: J McCutcheon, ‘The Vanishing Author in
Computer-Generated Works—A Critical Analysis of Recent Australian Case Law’ (2013) 36(3)
Melbourne University Law Review 915–969.
37 J McCutcheon, ‘The Vanishing Author in Computer-Generated Works—A Critical Analysis of
Recent Australian Case Law’ (2013) 36(3) Melbourne University Law Review 915–969.
38 Sands and McDougall Pty Ltd v Robinson [1917] HCA 14; 23 CLR 49.
39 Andrew Stewart, Philip Griffith, Judith Bannister, and Adam Liberman, Intellectual Property in
Australia (CCH Australia, 5th ed, 2014) 168; Mark James Davison, Ann Louise Monotti, and
Leanne Wiseman, Australian Intellectual Property Law (Cambridge University Press, 2008) 238.
40 Sam Ricketson, ‘Simplifying Copyright Law: Proposals from Down Under’ (1999) 21(11) Euro-
pean Intellectual Property Review 537–550.
3.3 Copyright Infringement: From Direct Liability to
Authorisation Liability
As discussed above, digital content used for streaming qualifies for copyright pro-
tection in Australia. Hence, it has been affirmed clearly that any act against the
protection specified in the Copyright Act can amount to copyright infringement.
Because this book focuses on the end-user, it is pertinent to examine how liabil-
ity for copyright infringement has evolved, in particular, towards the end-user.
Efforts to curb copyright infringement on the internet have, in fact, often pro-
gressed through direct and indirect liability doctrines.41
In copyright law, the direct liability concept has been characterised based on
the conformist approach, where the right holder takes an action against the pri-
mary infringer. In an online environment, generally, this is about finding answers
to questions such as “Who made the copy?” or “Who downloaded the file?”.42 The
primary infringer is recognised as a person who is directly involved in activities
such as reproduction, performance, and communication of a copyright work. The
USA initiated the recognition of copyright infringement through the lens of direct
liability, with the development of illegal methods regarding copyright works on
the internet.43 However, direct liability was not an effective strategy for putting
into practice, because other participants, such as website providers and content
aggregators, often facilitate an infringement. Notably, copyright infringement on
the internet involves several parties, whereas the liability can be evasive. Hence,
efforts have been taken to make such other participants liable for direct liabili-
ty.44 Copyright-protection measures, such as taking actions against individuals,
especially for small-scale infringements, have not been the preferred approach
of copyright holders. Hence, content owners have sought alternatives against
41 A&M Records, Inc v Napster, Inc, 239 F 3d 1004 (2001); MGM Studios, Inc v Grokster Ltd, 545
US 913 (2005).
42 Tomas A Lipinski, ‘Understanding Copyright Liability’ (2007) 11(3) Copyright & New Media Law
Newsletter 3.
43 LGS Architects, Inc v Concordia Homes of Nevada, 434 F 3d 1150, 1156 (9th Cir 1996); Kelly v
Arriba Soft Corp, 336 F 3d 811, 817 (9th Cir 2003).
44 In the USA, the question has been raised whether online intermediaries should be regarded as
direct infringers. In 1993, in the case of Playboy Enterprises v Frena, a District Court found that
a Bulletin Board Service (BBS) operator was responsible, even though the BBS had not uploaded
the work and was ignorant of the infringement taking place. The Court further stated that “the
intent or knowledge is not an element of [direct copyright] infringement”. In Religious Technology
Center v Netcom (Religious Tech Ctr v Netcom On-Line Communications Servs, Inc, 907 F Supp
1361 (ND) Cal 1995), the District Court rejected the appeal for the preliminary injunction, stating
that the roles of Erlich (who posted the copyright work) and Netcom (who made copies of the
material as it was passed on to the internet) were clearly dissimilar. Because Netcom was notified
of an infringement, previously to Erlich accomplishing his infringing action, there may be a ques-
tion of fact as to whether Netcom knew, or should have known, that such actions were infringing.
Although Netcom was liable for infringement, the Court mitigated the strict liability principles of
online intermediaries and emphasised the additional element of “volition or causation” to hold the
provider liable for direct infringement.
rampant copyright infringements on the internet, imposing their right against the
facilitators of individual infringers. In particular, the enforcement of copyright
in the online environment can be ineffective in legal actions for direct copyright
infringement.45 For example, the Recording Industry Association of America
(RIAA) faced difficulties in bringing direct infringers before the Court, which is
notable in relation to enforcing copyright over the internet.46
In contrast to direct liability, where a person can be held liable for facilitat-
ing an act, the indirect liability doctrine has been used. Thus, attempts to hold
indirect infringers liable for copyright infringement on the internet have gained
momentum in recent years. Indirect infringers are considered to be people who
are median characters, often with commercial purposes, who facilitate copyright
infringement. In Australia, indirect liability has been scrutinised through the
doctrine of “authorisation”. Sections 36(1A) and 101(1A) of the Copyright Act
articulate the concept of authorisation liability. Most importantly, the Copyright
Act provides the main criteria to determine authorisation liability, which com-
prise the extent of a person’s power to prevent, the nature of any relationship
involved between the parties, and whether reasonable steps have been taken to
avoid the act.47 In the historical development of “authorisation”, in early cases
such as Falcon v Famous Players Film Co Ltd48 and Monckton v Pathe Freres
Pathephone Ltd,49 Australian judges attempted to clarify unclear boundaries of
“authorisation”.50 The Australian test for infringement by authorisation was firmly
45 Alfred C Yen, ‘A Preliminary Economic Analysis of Napster: Internet Technology, Copyright

Liability, and the Possibility of Coasean Bargaining’ (2001) 26 University of Dayton Law Review,
248–277; Mark A Lemley and R Anthony Reese, ‘Reducing Digital Copyright Infringement
Without Restricting Innovation’ (2004) 56 Stanford Law Review 1345; Jason Hartley, ‘The Ninth
Circuit Allows Direct Copyright Infringers to Escape Liability’ (1996) 4(2) Tulane Journal of
International and Comparative Law 345.
46 Daniel Reynolds, ‘The RIAA Litigation War on File Sharing and Alternatives More Compatible
with Public Morality’ (2008) 9(2) The Minnesota Journal of Law, Science & Technology 977–
1007; Christopher S Channel, ‘The Twisted Path of the Music File-Sharing Litigation: The Cases
that Have Shaped the Litigation and the RIAA’s Litigation Strategy’ (2004) 16(10) Intellectual
Property & Technology Law Journal 6.
47 Copyright Act 1968 (Cth) s 101(1)A(a), (b), and (c).
48 [1926] 2 KB 474.
49 [1914] 1 KB 395.
50 Michael Napthali, ‘Unauthorised: Some Thoughts upon the Doctrine of Authorisation of Copy-
right Infringement in the Peer-to-Peer Age’ (2005) 16 Australian Intellectual Property Journal 5.
In the case of Re Wea International Inc and Wea Music Pty Ltd v Hanimex Corporation Ltd [1987]
FCA 379, Gummow J pronounced that the evolution of the definition of “authorisation” in the
1911 Act and 1968 Act:
has pursued perhaps an even more tortuous course than the doctrine of contributory infringe-
ment in the US. One view of the 1911 Act was that the expression “to authorise” described
a situation where the defendant purported to confer on a third party, for example as an agent
or licensee, a right or authority to perform activity which in truth would be, if carried out, an
infringement of the plaintiff’s copyright.
Another random document with
no related content on Scribd:
“Did he apologize to you, Waddie?” asked the colonel, turning to
his hopeful.
“He said he was sorry, and I told him to get down on his knees
and beg my pardon,” replied Waddie.
“And he would not do it?” asked the indignant father, evidently
regarding it as exceedingly unreasonable in me to refuse to undergo
this trifling humiliation.
“No, he wouldn’t.”
“Very well,” replied the great man. “We shall see whether he will
or not.”
I was willing to see.
“Wolf Penniman, you are a bad boy!” exclaimed the colonel with
emphasis.
I did not dispute him.
“You have insulted me and my son.”
“I am willing to be forgiven, sir,” I answered, after a vain effort to
keep down the spirit which was rising in me. “I have apologized for
being saucy; what more can I do?”
“You must do what my son told you to do, and then confess that
you helped blow up the canal boat,” replied he, more calmly than he
had yet spoken.
“I can’t do anything more, then. I know nothing about the blow-up,
and I won’t go down on my knees to anybody in this world.”
“You are an obstinate villain, and I’ll bring you to your senses
before I have done with you. Where is your father?”
“Gone to Hitaca.”
“Will you come down now, or shall I have you brought down?”
“I’ll be brought down, if it’s all the same to you, sir,” I replied,
folding my arms, and looking as impudent as I spoke.
I felt that I had given my mother’s good advice a fair trial. I had
gained nothing by apologizing, though I was not sorry I had done so.
The more I humiliated myself, the more I must; and, without meaning
to be saucy, I determined to stand up squarely for my own rights and
my own dignity.
“I’ll bring him down, if you say so, father,” volunteered the
Wimpleton junior.
“How?”
“We can drive him out of the tree, as we did off the bridge.”
“Exactly so!” exclaimed Captain Synders. “That’s a good idea.
Since neither words nor grass will do, we’ll try what virtue’s in a
stone or two.”
The besiegers went down the stairs, and Waddie called up his
forces, ready to renew the assault. By the time they reached the
ground, I had descended to the roof of the pagoda, where the party
could not see me, and where the thick branches of the trees
protected me from their missiles. They soon found they were not
getting ahead any, and by the advice of Synders they changed their
position. With the exception of the colonel, who was too dignified to
throw stones, men and boys renewed the assault, and poured a
shower of stones upon me. Some of them hit me, and the roof
became too warm for me. I dropped down into the summer house for
safety. Finding the coast clear,—for the colonel had been forced to
retire from the foot of the stairs to avoid the stones,—I rushed down
the steps, and ran with all my might towards home. The besiegers
had been careless, and I was only too happy to take advantage of
their mistake.
I ran as fast as I could over the bridge, following the path by
which I had come. I was closely pursued; but I distanced all my
enemies. It would be useless for me to go home; for the constable
was a man of authority, and I supposed he had been sent for to
arrest me, though on what charge I could not conjecture, for
Wimpleton senior would not dare to prosecute me in a matter
wherein Wimpleton junior would be likely to suffer more than myself.
I wished to spare my mother the pain and anxiety of another
controversy in the house; and for that reason, as well as because
home was not a safe place for me, I made my way to the mill wharf,
where I had an old skiff.
I reached this boat without accident, but out of breath with the
hard run I had had. Jumping in, I pushed off, and pulled away from
the shore. For the present I was safe, for there was no boat in which
I could be pursued, nearer than the mansion of Colonel Wimpleton.
The constable and his companions did not come down to the wharf
after they saw me push off, but returned in the direction of the grove.
I rowed out upon the lake, where I could see any boat which might
put off after me. I went half way across the lake, and then concluded
that my assailants had chosen to wait for my return.
I did not exactly like to return then; it would only be putting my
head into the lion’s mouth; and I pulled for Middleport. A sail-boat
was near me, in which were several boys, one of whom presently
hailed me.
“Is that you, Wolf?” called the speaker, in whom I recognized
Tommy Toppleton.
I informed him that it was I.
“I was going over after you,” he added. “Jump aboard—will you?”
I did so, and was glad to find myself among friends, though they
were Toppletonians.
“We want you to get that engine out of the water,” continued
Tommy.
I saw the tow-boat at the wharf, with steam up, and I promised to
do the job before night—in fact, to put it through by daylight.
CHAPTER XIV.
RAISING THE DUMMY.
“H aven’t you any one in Middleport that can raise that engine?”
I asked, with a pleasant smile, after I had taken a seat in
Tommy Toppleton’s beautiful sail-boat, with my old skiff in tow.
“Of course we have,” replied the Toppleton junior; “but I’m afraid it
will take a week for them to do it. They are talking about rigging a
derrick on the wharf.”
“You don’t need any derrick, or anything of that sort,” I added,
confidently; and I was quite satisfied that with the aid of the tow-boat
I could make good my promise.
“Do you think you can really raise the thing?” asked Tommy,
anxiously.
“I know I can.”
“Can you do it right up quick?”
“It may take an hour or so. Can I have your father’s tow-boat?”
“Certainly you can; but my father don’t know I came over after
you,” added the scion of the house of Toppleton.
“I don’t want to do anything without your father’s knowledge and
consent.”
“He won’t find any fault with anything except that you are a
Centreporter.”
“I am no more a Centreporter than I am a Middleporter now,” I
replied. “I have had a row with the powers that be on our side.”
“A row! Good!” exclaimed Tommy, his face brightening up at this
intelligence. “What was it?”
I explained what it was, telling the whole history of the blowing up
of the canal-boat, with the collateral incidents relating to the affair.
“That’s just like Wimpleton,” said Tommy. “We don’t behave in
that way on our side of the lake.”
I hoped they did not; but it was a fact patent to the people, that
Mr. Tommy, though by no means as bad a boy as Waddie, was a
spoiled child. He was overbearing, domineering, and inclined to get
into bad scrapes. Though he was willing to be my friend, and to treat
me with the greatest consideration at the present time, it was only
because he had an axe to grind; and I had not much confidence in
the professions he made to me.
“I wish you would come and live on our side,” added Tommy. “We
want just such a fellow as you are over here.”
“Perhaps I may have to live over here,” I replied. “I suppose
Waddie will not let me rest in peace after what has happened; and I
never will go down on my knees to him or any other person.”
“Don’t you do it, Wolf,” said Tommy, warmly. “If you want a dozen
or twenty of our fellows to go over and whip out the crowd that set
upon you, we will do it—won’t we, fellows?”
“I’ll bet we will,” replied the half dozen particular cronies of
Tommy who were in the boat with him.
“I don’t wish to do anything of that kind. I bear Waddie no ill will;
and if he will only let me alone, I shall never have any trouble with
him.”
“You are too easy with him. If you only licked him once, he would
respect you for it.”
I could not help thinking what the consequences would be if any
plebeian Middleporter took it into his head to “lick” Tommy Toppleton;
and it was about the same on one side of the lake as the other. It
was not prudent to thrash so much pride, conceit, and wealth, as
were embodied in the person of either of the heirs of the great
houses. The sons of poor men had to stand back, and take off their
hats to the scion of either family. Fathers’ situations and mothers’
social positions depended much upon the deference paid by their
children to the representatives of the nabobs.
“Where shall I land you, Wolf?” asked Tommy, as the sail-boat
approached the wharf, near which the dummy reposed,
ignominiously, on the bottom of the lake.
“Put me on board of the tow-boat, if you please. And you must
get the captain to do what I tell him,” I replied.
“I’ll do that. He shall obey your orders just as though you were
the owner of the steamer.”
We ran up to the tow-boat, which was about to start on a trip up
the lake with a fleet of canal boats that had gathered together. I knew
that she had on board all the rigging I needed for my bold
experiment, including some very long tow-lines. Tommy ran up to the
boat, and he and I leaped upon her deck, for I had assured him I
needed no help from the boys, or any one else.
“Captain Underwood, we want to use your boat for a while,” said
Tommy, as briskly as though he had himself been the owner of the
craft.
“Does your father say so?” asked the captain, with some
hesitation, and with the utmost deference.
“No matter whether he does or not; I will be responsible. Now go
ahead, Wolf. You can put her through by daylight.”
The captain consented to take part in the enterprise, when
informed that I was the “young engineer,”—as I had the honor to be
called,—and that I had a plan to put the dummy on shore.
“Shall I explain the plan to you, Captain Underwood?” I asked.
“No, you needn’t, Wolf, unless you wish to do so,” interposed
Tommy, impatiently.
“If you will tell me what to do, I will obey orders,” answered the
captain. “In fact, I don’t care to know anything about it; and then I
shall be responsible for nothing.”
“All right, captain. You shall not be responsible, and if I fail no
harm will be done. Have you a stout iron hook?”
“Yes; here is one on the end of this tow-line,” he replied, pointing
to a coil of large rope.
“That’s just what I want,” said I, throwing off my coat. “Now run up
to the north side of the dummy.”
Before the steamer reached the spot I had thrown off all my
clothes. Jumping into my skiff with Tommy, who was proud and
happy to have a finger in the pie, we took the tow-line on board, and
pulled to the end of the dummy, to which I made fast. I had
ascertained from my companion that there was a shackle eye in
each end of the engine, by which another car could be attached to it;
and my present purpose was to fasten the hook into this eye.
The water of Lake Ucayga is as clear as crystal, and I had no
trouble in finding the eye, which was no more than four feet below
the surface of the lake. I dropped down into the engine-room,
standing up to my neck in water, and Tommy lowered down the iron
hook. I then stooped down, disappeared from the view of the world
above me for a moment, and attached the hook to the eye.
“All right, Tommy,” said I, when I had cleared the water from my
mouth.
“Bully for you, Wolf; but I don’t see how you are going to put the
thing on shore,” replied he.
“I’m going to do it; if I don’t I never will go on shore again myself,”
I added, as I sprang upon the roof of the dummy again.
“I should hate to fail, for the fellows are a-gathering on the wharf
to see the fun.”
“There’s no such word as fail,” I answered, leaping into the boat.
“Now pull for the tow-boat, and let me put on my rags again.”
I jumped upon deck, and in a few moments had my clothes on. I
glanced at the wharf, and saw that quite a number of students and
grown-up people had gathered there, as the intelligence spread that
something was going on.
“What next, Wolf?” asked Captain Underwood, bestowing upon
me a smile which seemed to indicate an utter want of confidence in
my operations.
“Go ahead, captain,” I replied, seizing the tow-line, and making it
fast at the bits provided for the purpose.
I knew what the bottom of the lake was at the Middleport wharf,
for I had been down there more than once. It was composed of hard
gravel, and almost as smooth as the surface of the lake in a calm
day. I knew that the flanges of the car wheels would cut into the
ground and make it go hard and they would run as well there as on a
hard road.
“Go ahead!” said Captain Underwood to the engineer.
“Steady, captain! Work her up gradually,” I added.
The wheels turned slowly at first, so as not to part the tow-line, or
needlessly wrench the sunken car; but in a few moments she had full
steam on. It was an anxious moment to me, and the gathering crowd
on shore watched the movement in silence.
“She starts!” exclaimed Tommy, highly excited. “She’s coming!”
“Of course she’s coming; I knew she would,” I replied, struggling
to keep down the emotions which agitated me.
“Hurrah!” yelled Tommy, as the dummy began to follow us, as
though she were a part of the steamer.
“Starboard your helm, Captain Underwood,” I called.
“Starboard it is,” replied the captain, when he had given the order
to the wheelman.
“Keep as well in shore as your draught will let you,” I continued.
“I can’t run the boat up on the shore, Wolf,” said the captain.
“I don’t want you to do so. The dummy travels very well on the
bottom.”
“Yes; but we can’t drag it out of the water without running upon
shore with the boat.”
“I think we can, captain. At any rate, don’t let the boat get
aground,” I replied.
The steamer continued on her course till she came abreast of a
large tree growing on the shore, between which and the lake the rails
were laid down.
“Stop her!” I shouted; and my order was promptly obeyed.
The dummy was now in about six feet of water, and not more
than a hundred feet from the tree. It was headed in a diagonal
towards the railroad.
“Now, Captain Underwood, have you a heavy snatch-block?” I
asked as the boat stopped.
“I have—one used with that tow-line,” replied the obliging captain,
to whom the request indicated the nature of further operations; and I
ought to add, in justice to him, that the look of incredulity which had
played upon his face was all gone.
I took the snatch-block, with the ropes to make it fast, and the
end of the tow-line, into the skiff, and, attended by Tommy, pulled
ashore. My companion, in spite of the fact that he usually wore kid
gloves, made himself exceedingly serviceable. I rigged the snatch-
block to the tree, and passed the tow-line over the sheaf, carrying
the end back to the steamer in the boat, where I made it fast to the
stern bits.
“Go ahead, captain!” I called.
Working her up to her speed slowly and carefully, the steamer
ploughed and strained for a few moments, then went ahead. The
rope strained, but it did not part, and the dummy walked up out of the
water as though she had been a sea-horse emerging from his native
element.
The crowd which had followed the steamer cheered lustily, and
my promise was redeemed.
CHAPTER XV.
GETTING UP STEAM.
T he enthusiastic cheering which followed the passage of the

dummy from the water to the land was grateful to me, and I
enjoyed it to a degree which I cannot express. I felt just as though
the Centreporters had cast me out, and the Middleporters had taken
me up. I was quite confident that there were many persons in
Middleport who could have raised the dummy; but no one seemed to
have thought of my plan. Perhaps few of them knew the bottom of
the lake as well as I did, for diving was one of my accomplishments;
and I had oftener gone into the water on the Middleport side than on
the other, because the beach was better.
“By gracious, Wolf! you have done it!” exclaimed Tommy
Toppleton, as I directed the captain to stop the steamer; and his
mouth and his eyes were opened as wide as if an earthquake had
rent the lake beneath us.
“Of course I have done it; I expected to do it,” I replied, as
indifferently as I could, for, however big one may feel, he does not
always like to show it.
“You have done it handsomely, too,” added Captain Underwood;
and praise from Sir What’s-his-name was praise indeed.
“I hope the Wimpleton fellows saw that,” said Tommy, puffing out
his cheeks, and looking as grand as an alderman. “It would take
them down a peg if they did.”
“I expect to catch it for helping you out,” I added, as I thought of
the wrath of Colonel Wimpleton, when he should hear that I had
been playing into the hands of the Toppletonians.
“Don’t you be afraid of the whole boodle of them,” replied Tommy,
shaking his head, as though he thought the other side would make a
great mistake if it attempted to punish me for what I had done.
“We’ll talk about that some other time,” I answered, turning my
attention to business again.
“We haven’t quite done the work yet. We must put the dummy on
the track.”
“Can I help you any more?” asked the captain, with a deference
which amazed me.
“You may give us one more pull, if you are not in a hurry. I’m
going on shore now, and I will make a signal to start and to stop her,
with my handkerchief,” said I, jumping into the skiff with Tommy.
The dummy stood within a couple of rods of the track, which was
in readiness as far as Spangleport, five miles down the lake. We
landed, and marched in triumph through the crowd of men and boys
on the shore, though I ought to say that Tommy did the triumphal
part of the programme, and looked as grand as though he had
himself been the engineer of the movement. Scores of the students
offered their services, and as I was on the point of sending some of
them for a few planks on which to roll the dummy to the track, a
platform car, which had constituted the entire rolling stock of the
Lake Shore Railroad, rumbled up to the spot, in charge of a portion
of the students, attended by Major Toppleton himself. The car was
loaded with planks and rigging, which the Middleport magnate had
foreseen we should want.
“We’ve got her out, father!” shouted Tommy, when he saw the
major.
“I see you have,” replied the great man, with a cheerful smile.
“But we haven’t quite finished the job yet,” added the young
gentleman, bustling about as though the completion of the work
rested heavily on his shoulders. “What next, Wolf?” said he, turning
to me, and speaking in a lower tone.
“We must lay down some planks to roll it on the track with,” I
replied.
“Bring up the planks, fellows!” cried Tommy; and the students
rushed to obey his commands.
“This is Wolf—is it?” said Major Toppleton, bestowing a
patronizing glance at me.
“Yes, father; this is Wolf, and he puts things through by daylight, I
can tell you. He and I have managed this thing ourselves,” replied
Tommy, swelling with importance.
“I’m glad to see you, Wolf. They say you have a taste for
machinery.”
“Yes, sir; I’m very fond of machinery.”
“And you live on the other side?”
“Yes, sir; my father is the engineer in Colonel Wimpleton’s steam
mill.”
“Humph!” ejaculated the major. “But you have done well, for I was
just offering a man two hundred dollars to raise the dummy. He said
it would take him three days to rig his derrick, and bring down his
capstans from Ucayga. I was talking with him when you hooked on
and dragged the thing away. You are a smart boy.”
“Thank you, sir.”
“You shall not lose anything by the job, if you do belong on the
other side,” said the major, magnanimously.
“O, I don’t ask anything, sir. I only did it for fun.”
“Well, it’s good fun, at any rate,” laughed the great man. “The
boys will think you are a little god.”
“I suppose I shouldn’t have dared to meddle with it if I had not
fallen out with Colonel Wimpleton and his son.”
“Ah, indeed?” queried the major, opening his eyes, as a gleam of
satisfaction passed over his face. “We will talk that matter over when
your job is finished.”
By this time the students, who would have insulted me if I had
come among them at any other time, had brought up the planks from
the car, and I proceeded to lay a track for the dummy wheels. I
placed two lines of wide ones as far as the iron rails, sweeping them
in curves, so as to turn the engine as it neared the track. On them I
laid narrower planks for the wheels to run upon, gauging them with a
stick measured to the width of the flanges of the wheels. When all
was ready for a start, I gave the signal with my handkerchief. The
steamer paddled and splashed, the rope strained, and the dummy
started again. I directed the students to steady the planks so that
they should not slip, and in a couple of minutes, more or less, we
had the machine on the temporary track I had rigged. I waved my
handkerchief again, and the boat stopped.
“That will do, Tommy,” said I. “Tell your fellows to cast off the
snatch-block, and let the captain haul in his tow-line. We shall not
want it any more.”
“But the dummy is not on the track yet,” replied Tommy, fearful
that some delay might occur.
“We can move it on the planks easily enough without the
steamer; and she pulls so hard I am afraid she will overdo the
matter. Send a couple of your fellows off in my skiff with the snatch-
block and ropes.”
The scion of the Toppleton house liked to be “the biggest toad in
the puddle,” and he gave off his orders with great gusto to the
students, not always in as gentlemanly terms as I could have
wished, but with effect. He was promptly obeyed, without dispute. I
suggested to him that the cushions and other movable articles in the
passenger compartment of the dummy should be removed, and
placed in the sun to dry. Tommy went at the students as though the
idea was his own, and made all hands “stand around” for a moment.
I was very willing to flatter his vanity by letting him do the ordering.
There was a brake in the engine-room, and another on the
platform in the rear of the car. Tommy, at my request, placed a
student at each of them. I then rigged a long rope at the forward end
of the dummy, which was manned by a crowd of boys, while the men
who were standing by took hold at the sides and end of the car.
“Now start her, Tommy,” said I in a low tone, so as to permit him
to enjoy the pleasing illusion that he was running the machine.
“Now, all together—ahead with her!” shouted Tommy, flourishing
his arms like the director of an orchestra.
“Steady, Tommy.”
“Steady!” yelled my mouthpiece.
The dummy moved slowly forward, till the drive-wheels came to
the iron track.
“Put on the brakes! Stop her!” shouted Tommy, as I gave him the
word.
The passage of the wheels from the planks down to the iron track
involved some difficulty; but, by the aid of rocks and a couple of iron
bars, the transit was effected, and the dummy was safely deposited
on the rails in just an hour after the work began.
“Three cheers for the Lake Shore Railroad!” shouted one of the
students, in the violence of his enthusiasm, when the job was
completed.
They were given with a will.
“Three more for Wolf Penniman,” added another student; and I
was duly complimented, for which I took off my cap and bowed my
acknowledgments.
“Don’t forget Tommy,” I whispered to one of the fellows.
“Three rousing cheers for Tommy Toppleton,” called the student
to whom I had given the hint.
Perhaps some of them thought that Mr. Tommy had not done
anything to entitle him to the consideration; but the cheers were
given, and supplemented with a “tiger.”
“Fellow-students, I thank you for this compliment, and for this
evidence of your good will,” said Tommy, taking off his hat. “I have
done the best I could to help along the Lake Shore Railroad, and as
the president of the company, I am much obliged to you for this
token of encouragement. When our rolling stock was buried beneath
the wave, it was my duty to do something; and I’ve done it. I’m glad
you are satisfied with the result.”
Then Tommy was the president of the Lake Shore Railroad
Company! I did not know this before; his zeal was fully explained,
and I was all the more pleased that I had permitted him to exercise
the lion’s share of the authority.
“Three cheers for Major Toppleton,” squeaked a little fellow, who
thought the magnificent patron of the enterprise had been neglected.
The great man bowed and smiled, as great men always do when
they are cheered; but he did not take up any of our valuable time by
making a speech.
“Tommy, we want some oil and some packing,” I suggested to the
president of the road, after I had examined the machinery of the
dummy.
“Do you think you can start her up to-night, Wolf?” asked Tommy,
anxiously, after he had despatched half a dozen of his satellites for
the required articles.
“Certainly we can; you shall ride over to Spangleport, and back to
Middleport in her,” I replied. “Now let some of your fellows bring up
water to fill the boiler and the tank, and we will get up steam in the
course of an hour or so.”
The boys returned from the steam mill with packing and oil; and,
while others were bringing wood and water, I rubbed up and oiled the
machinery. Brooms, mops, and cloths were obtained, and, under
Tommy’s direction, the passenger portion of the car was cleaned and
wiped. The engine had been well oiled before it was sent up from
Philadelphia, and I had nothing to do but wipe off the water and
lubricate the running parts. I kindled a fire in the furnace, and, when
the smoke began to pour out of the smoke-stack, the students yelled
for joy.
CHAPTER XVI.
THE FIRST TRIP OF THE DUMMY.
I was in my element—in charge of a steam-engine. Though I had

never seen a dummy before this one, I comprehended the
machinery at a glance. I hardly heard the tumultuous yells of the
Toppletonians as they manifested their joy, so absorbed was I in the
study of the machine, and in the anticipation of what wonderful
things it would do. Such an excited crowd as that which surrounded
me I had never seen, and I was obliged to close the door of the
engine-room to keep them out. I opened it with due deference when
Mr. Tommy Toppleton, the president of the Lake Shore Railroad,
made a demand for admission, but I remorselessly excluded the
board of directors and the superintendent, to their great mortification,
no doubt; but I did not know them just then.
Tommy and his father were busily engaged in a conversation
which seemed to relate to me, when I rang the bell to indicate that
the engine was ready for a start. This announcement was greeted
with the usual volley of cheers, and the young gentlemen began to
pile into the passenger apartment to a degree which perilled the
powers of the car. There were at least a hundred of them, and it was
impossible to accommodate the whole. The major directed his son to
divide them into two companies; and, though all of them manifested
a childish impatience to have the first ride, they submitted to the
arrangement. Fifty of them filled the car, and Major Toppleton and
Tommy honored me with their company in the engine-room.
“All aboard!” shouted the president.
“I think they need no such invitation,” I added, laughing.
“We must do things up in shape, you know. We are all ready now,
Wolf,” replied Tommy, highly excited.
“I don’t know anything about the road on which I am to run, Mr.
President,” I suggested, as a preparation for any accident which
might happen.
“The road is all right, you may depend upon that,” answered
Tommy.
“Of course, if the rails happen to be spread, or anything of that
sort, we shall be thrown off the track.”
“I sent a man over it with a gauge, yesterday, and he reported it
to be in perfect condition,” interposed the major. “It would be very
unfortunate to have any accident happen, and I have taken every
precaution to guard against one.”
“I think we had better run very slowly the first time,” I replied.
“You can’t be too careful, young man.”
“Let her drive, Wolf!” said Tommy, impatiently.
I let off the brake, and opened the valve. The steam hissed in the
most natural and encouraging manner, and the dummy began to
move, amid the shouts of those on board and those on the ground.
The road was very level and straight, and the car moved as easily as
a boat in the water, though the engine made a disagreeable puffing
and twanging noise in its action.

End-User Perspective (Routledge Research in Intellectual Property) 1st Edition Lasantha Ariyarathna

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End-User Perspective (Routledge Research in Intellectual Property) 1st Edition Lasantha Ariyarathna

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Streaming and Copyright Law: An

end-user perspective (Routledge

Intellectual Property: Patents, Copyright, Trade Marks

Economic Commercial and Intellectual property Law 2nd

Intellectual Property Patents Copyright Trade Marks and

Intellectual Property Law in India Third Edition Tamali

World Intellectual Property Indicators 2019 1st Edition

Access to Medicines and Vaccines: Implementing

An Islamic Vision Of Intellectual Property Theory And

Intellectual Property: Law & The Information Society

This book examines the challenges posed to Australian copyright law by

Copyright Law and Derivative Works

The Patentability of Software

Annotated Leading Trademark Cases in Major Asian Jurisdictions

SEPs, SSOs and FRAND

Towards an Ecological Intellectual Property

The Transformation of EU Geographical Indications Law

Copyright Law and Translation

Patent Law, Green Technology and Innovation

For more information about this series, please visit https://www.routledge.com/

2 Technological Aspects of Streaming 9

3 The Impact of Copyright Law on Streaming 24

4 Copyright Defences or Exceptions for Streaming

5 Circumvention of Geo-Blocking, Technological

6 Website Blocking as a New Enforcement Mechanism,

7 Conclusion and Recommendations 202

I wish to thank Associate Professor Kanchana Kariyawasam, and Dr Althaf

ACCC Australian Competition and Consumer Commission

1.2 Streaming Technology: Definition, Streaming

1.2.1 Brief History of Streaming

8 See: Australian Football League <http://www.afl.com.au/video> accessed 10 January 2018.

1.2.2 Streaming and the End-User in Australia

1.3 What Are the Main Issues in Streaming and Copyright?

1. In what manner do the provisions dealing with copyright infringement in the

6. How should Australia respond to current inadequacies in copyright law when

Technological developments such as streaming challenge traditional copyright

2.2 The Technology behind Streaming

12 Steve Mack, Streaming Media Bible (Hungry Minds, 2002) 34.

2.3 Methods of Streaming and New Apparatuses

21 British Broadcasting Corporation, ‘What Is Streaming?’ WebWise (Web Page) <http://www.bbc

2.3.1 Unicast Streaming

2.3.2 Multicast Streaming

2.3.3 User-Generated Streaming

2.3.4 Peer-to-Peer Streaming

2.3.5 Streaming-Enabled New Apparatuses

2.4 Streaming as an Access and Dissemination-Based

2.4.1 Non-Downloading Feature of Streaming

2.4.2 Anonymity as a Stimulus to Use Streaming

PART I: COPYRIGHT IN DIGITAL CONTENT AND EVOLVEMENT

3.2 Copyright Protection for Digital Content That Is Streamed

1 Copyright Act 1968 (Cth) ss 84–87.

3.2.1 Recognition of Subject Matter

Foster J clearly explains that a sound recording is made by embodying sound

8 Copyright Act 1968 (Cth) s 10.

a service that delivers television programs or radio programs to persons hav-

20 Federal Registrar of Legislation, Commonwealth of Australia Gazette, No GN 38, (25 September

23 [2016] NSWSC 523.

26 [2012] FCA 93.

3.2.2 Requirement of Adequate Connection with Australia

3.2.3 Authorship and Originality

45 Alfred C Yen, ‘A Preliminary Economic Analysis of Napster: Internet Technology, Copyright

T he enthusiastic cheering which followed the passage of the

I was in my element—in charge of a steam-engine. Though I had