Australia: Copyright Amendment (Online Infringement) Bill introduced into Parliament

Last Updated: 16 April 2015
Article by Ian Robertson and Sarah Butler
Most Read Contributor in Australia, August 2019

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:

  1. the CSP is providing access to an online location (meaning a website) outside Australia;
  2. the online location infringes, or facilitates an infringement of the copyright; and
  3. 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 [2015] 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.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions