The Copyright Amendment (Online Infringement) Bill 2015,
introduced into parliament by Communications Minister Malcolm
Turnbull in March 2015 to curb online piracy of film and TV shows,
passed with the Coalition and Labor's support 37-13. The law
amends the Copyright Act and allows content owners to
apply to the Federal Court for an injunction blocking an
"online location outside Australia" which has a
"primary purpose" of "facilitating" copyright
Unlike the test in Australian law for "authorizing"
copyright infringement which is a known quantity, with a long
history before our courts, this new remedy against online sites for
"facilitating" infringement has broad and
indeterminate scope. It is possible that these
"facilitators" of infringement would not be held to
infringe copyright under current Australian law. An example of such
a "facilitator" may be a provider of a VPN service
allowing Australians direct internet access to foreign countries
without visibility to ISPs. VPNs have multiple lawful uses
connected with secure communication – aside from their
widespread use to access Netflix, Hulu or other overseas content
A real question to be played out over time is if websites for
businesses with lawful activities in their home jurisdiction or
even a substantial non-infringing user base in Australia will be
caught up in this website blocking scheme. For example –
cloud based file storage businesses that serve business and
consumer needs could be caught up in one of these injunctions
– blocking lawful or business users from accessing their
records.This was a problem with the shut down of cloud storage
provider "megaupload" in 2012 when many lawful users and
businesses lost access to their records.
Further – if ISPs or "carriage service
providers" contest an injunction or provide submissions to the
court they are exposed to the content owners' legal costs, so
there is a real chance many of the hearings under the new
legislation will be conducted by content owners alone without the
benefit of robust argument.
The other problem with this law as a solution to online piracy
is that infringers will always move faster than regulators –
legitimate businesses won't be able to continually move IP
address and otherwise evade blocking measures whereas the pirates
such as Pirate Bay have a long history of evading blocking efforts
like this in Europe. It is a law with a large potential impact on
online activity in Australia which may not have much impact where
it is intended.
The real solutions for curbing the Australian appetite for
unlicensed content is probably in the commercial distribution
models. The content owners have taken a very long time toextend
models like Netflix and Spotify to Australia, even when those
models have been widely used in other jurisdictions. These lawful
content distribution models make content available in an easy,
timely and affordable way which must act to diminish piracy.
Australia's new law will be a bandaid solution that
won't solve the underlying piracy problem and it could cause
some harm if it is misused.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Shelston IP ranked one of Australia's
leading Intellectual Property firms in 2015.
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