On 26 March 2015, the Government introduced the Copyright Amendment (Online Infringement) Bill 2015 (Cth) (Bill) into Parliament.
The Bill amends the Copyright Act 1968 (Cth) (Act) to enable a copyright owner to apply to the Federal Court for an injunction requiring a carriage service provider (CSP) to take reasonable steps to block access to overseas websites that have the primary purpose of providing users with access to material which infringes copyright.
In introducing the Bill into the lower house, the Minister for Communications, the Hon Malcolm Turnbull, said:
[t]he bill recognises that there is a need to balance the important goal of protecting our creative industries against other vital public and private interests. The bill, therefore, contains a number of safeguards to ensure that the power is not used to curb those competing interests.
When will an injunction be granted?
The Bill proposes to insert a new section, section 115A, into the current Act. This section provides that an injunction may be granted by the Federal Court if it is satisfied that each of the following three elements are met:
- the CSP is providing access to an online location (meaning a website) outside Australia;
- the online location infringes, or facilitates an infringement of the copyright; and
- the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).
The threshold of "primary purpose" that must be satisfied by the rights holder prior to the grant of injunctive relief is intended to safeguard against potential abuse. For example, YouTube is unlikely to be blocked, despite often hosting illegitimate copyright material, as its primary purpose is not to infringe copyright.
The "primary purpose" test will also prevent the blocking of websites that provide legitimate copyright content to individuals within another geographic location, but are not licensed to distribute that copyright material in Australia. For instance, Australians who pay for access to US Netflix will still be able to access the US website because Netflix's primary purpose is to provide legitimate copyright content.
Relevant considerations in determining whether to grant an injunction
The granting of injunctions will be at the discretion of the Federal Court. In exercising this discretion, the Bill requires that the Federal Court must consider various matters, including:
- the flagrancy of the infringement or the facilitation of the infringement;
- whether the online location makes available or contains directories, indexes or categories of the means to infringe (or facilitate an infringement of) copyright;
- whether disabling access to the online location is a proportionate response in the circumstances; and
- whether the copyright owner has any other remedies under the Act.
The current position of the law
The injunction mechanism provided for in the Bill will not be available for websites hosted in Australia. The current relief available in the Act will continue to be accessible to rights holders who choose to bring proceedings against local hosted websites.
The Act currently provides that an owner of copyright may bring a direct action against an operator of an online location for an infringement of their copyright. The relief that may be granted by a court includes an injunction, and either damages or an account of profits.
As the law currently stands, there exists a clear difficulty for domestic copyright holders to enforce their rights against operators of online platforms that are located outside Australia. This is an issue that the Bill seeks to address.
Initial reaction to the Bill
The injunction mechanism has been welcomed by rights holders in Australia, as it has been in countries which have introduced similar legislation, such as the UK.
The injunctive relief prescribed by the Bill is generally thought by the media industry to be a reasonable, necessary and proportionate response to the issues faced by rights holders in enforcing their rights, especially considering the practical issues in enforcing rights against operators from outside locations. The Bill has been publicly well-received by several subscription broadcasters and cinema companies.
Ian Robertson, partner at Holding Redlich, agrees that the legislation achieves a fair and positive result and was quoted in the Australian Financial Review on 13 April 2015 as stating that: "The legislation is a sensible and necessary response to rampant audio-visual piracy which is damaging the entire screen industry".
However, some service providers and industry groups have expressed reservations about the Bill. For instance, the Internet Society of Australia has expressed concerns that the Bill may have unintended costs and consequences and has urged the Government to be more consultative in its approach to the amendments.
Chief executive of the Communications Alliance, John Stanton, has also said that terms such as "online location" and "website" should be precisely defined to reduce the risk of innocent websites being unintentionally impacted when multiple sites reside under a single IP address or domain.
Other significant developments
The release of the Bill coincides with two significant developments in the prevention of online copyright infringement:
- the Federal Court's recent decision in Dallas Buyers Club v iiNet Limited  FCA 317 (please see article here...); and
- the draft Copyright Notice Scheme Industry Code that was submitted to the Australian Communications and Media Authority last week (please see article here...)
The reporting date of the Senate Legal and Constitutional Affairs Legislation Committee is 13 May 2015.
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