A new copyright bill would enable copyright owners to apply to the Federal Court to require carriage service providers to block infringing overseas websites, but the precise method remains unclear.
On 26 March 2015, the Federal Communications Minister Malcolm Turnbull introduced the Copyright Amendment (Online Infringement) Bill into Parliament. The Bill will give rights-holders an efficient mechanism to disrupt copyright infringement websites operated outside of Australia.
What is the context for this Bill?
In July 2014 the Government released the Online Copyright Infringement Discussion Paper, which proposed amendments to Copyright Act 1968. The proposals aimed to improve the existing legal framework so that rights-holders, carriage service providers (CSPs) and consumer representatives could develop workable approaches to reducing online copyright infringement.
Extended injunctive relief to block infringing overseas sites was proposed as a solution to the difficulties of taking enforcement action against entities operating outside of Australia.
A specific injunction power directed at CSPs would give rights-holders a way of taking immediate action to enforce their rights, and would give CSPs the certainty and legal protection of a court order when blocking access to websites that contain infringing content.
This measure has already been adopted by a number of European Union member countries including the United Kingdom, where over 90 websites linked to pirated content have been blocked by local CSPs as a result of copyright owner instituted court injunctions.
How would the process work?
Under the Bill, a party may apply to the Federal Court to grant an injunction to require the CSP to take reasonable steps to disable access to an online location. Under proposed section 115A of the Copyright Act, the Federal Court will only grant the injunction if it is satisfied that:
- a CSP provides access to an online location 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 person who operates the online location will have the right to apply to join the copyright owner, and the CSP as party to the proceedings.
Under the Bill, the copyright owner bears the responsibility of giving notice of the application to both the CSP, and the person who operates the online location. Due to difficulties often associated with finding the identity or address of those persons who operate online locations, the Court may dispense with the requirement that the copyright owner give notice to the operator if the copyright owner has used reasonable, but unsuccessful, efforts to locate the operator.
The Court may limit the duration of the injunction or rescind or vary the injunction on application by the CSP, the copyright owner or another person prescribed by the regulations.
What matters will the Court take into account in granting the injunction?
The Bill lists a number of factors the Federal Court must consider in determining whether to grant the injunction. These include:
- the flagrancy of the copyright infringement, or the flagrancy of 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; and
- whether the owner or operator of the online location demonstrates a disregard for copyright generally.
The Court must also have regard to whether access to the online location has been disabled by orders from any court of another country related to copyright infringement, whether disabling access is a proportionate response, public interest factors, and the impact disabling access will have on any person.
What websites are likely to be blocked?
The provisions of the Bill are designed to target only those foreign websites whose "primary purpose" is to infringe copyright. Examples of online locations that could be blocked by this Bill include websites that provide links to, or host, infringing material, and websites that provide torrent files that facilitate the unauthorised download of copyright material. Websites such as YouTube, search engines and overseas websites that provide legitimate copyright material but are not licensed to distribute that material to Australian users, do not have the primary purpose of infringing or facilitating copyright infringement, and are therefore unlikely to be blocked by the Bill.
What do CSPs think?
CSPs were given a chance to submit their views on the website blocking mechanism during the 2014 Discussion Paper consultation process.
During this process, the principal telecommunications body in Australia, the Communications Alliance, said that despite being a "relatively blunt instrument", the proposed site blocking mechanism could play an important role in addressing online copyright infringement in Australia, provided the appropriate safeguards were in place.
However, CSPs do not appear to have been consulted in the process of drafting the Bill, and will be examining the final form of the proposal for the first time.
Potential issues with the Bill
The Bill requires that CSPs use "reasonable steps" to disable access to the infringing online location, but it does not prescribe exactly how the CSP should do this. There are many ways of blocking access to websites, and using the wrong method could result in a number of legitimate websites being inadvertently blocked as part of the process.
The Bill also does not set a limit on the number of websites that can be listed in one application, meaning that a copyright owner could potentially seek to block thousands of websites in one go.
Who will pay for the cost of the application?
The CSP is not liable for any costs in relation to the proceedings unless it enters an appearance and takes part in them. At this stage there do not appear to be any plans to compensate CSPs for the costs associated with blocking the infringing content, and the Explanatory Memorandum to the Bill suggests that the legislation will cost the CSP industry approximately $130,825 a year to enforce.
Since being introduced to Parliament, the Bill has been referred to the Senate Legal and Constitutional Affairs Committee for industry consultation and review. The Committee is accepting written submissions in response to the Bill until 16 April, and is due to report by 13 May 2015.
This Bill is part of broader developments in relation to online copyright infringement in Australia, including:
- an industry code that proposes a "three strikes" graduated response scheme to help deter internet users from infringing rights-holders' copyright; and
- the recent preliminary discovery application made by rights holders against six Australian CSPs to identify subscribers who shared online the film "Dallas Buyers Club".
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.