Late last year, the film industry in Australia won its first
legal battle against piracy and unauthorised downloading practices
since the amendment of the Copyright Act in June 2015.
As a result of the Federal Court's judgment in Roadshow
Films Pty Ltd v Telstra Corporation Ltd  FCA 1503,
largely used websites such as Torrentz, TorrentHound, IsoHunt and
streaming service SolarMovie, will be shut down, and stopped from
allowing users to download media content without infringing third
parties' rights. Australian users will therefore, be prevented
from downloading music, watching the latest released movie or
famous TV series and shows from these websites.
The decision provides some insights to the wording of the Act,
and what are the obligations imposed on the affected parties.
The blocking power
Under Section 115A of the Copyright Amendment (Online
Infringement) Act 2015, the Federal Court is vested with the
power to raise an injunction ordering Internet Service Providers
(ISPs) such as Optus or Telstra to take the
necessary steps to disable (by blocking or re-routing) websites
infringing third party's copyright. The decision provided some
clarity to the applicable criteria when determining whether an
injunction is to be granted.
Firstly, the Court applied a test of substance (rather than of
form), to determine whether a website infringes copyright. As a
result, the Court analysed the purpose for the creation and use of
the website. If a website was established to give access to
consumers to free (or paid) content and it is currently providing
such service, it would be subject to a blockage if such access is
given without authorisation.
Secondly, the judgement indicated that the website does not
necessarily need to be infringing third parties' rights at the
exact moment when the injunction is being made. This means that if
the website was continuously active at the time the proceedings
were entered, it would be subject to the remedy sought as long as
the website was not taken down on a permanent basis. This approach
is directed to prevent infringers from escaping injunctions by
using technological tools such as temporarily hiding the
Finally, the decision enforces Section 115A(9) by ordering the
applicant, Roadshow Films (Roadshow), to bear the
costs of the services providers to block any access to the
infringing websites. In this case, they were ordered to pay
Telstra, Optus, M2 and TPG $50 per domain name to be disabled, and
to pay the costs and fees for the proceedings. The rationale behind
this order not only follows the norm but also imposes the economic
responsibility on the Roadshow Films who are the ones benefited
with the legal remedy sought.
Sharing the tasks
The obligations imposed by the Court's orders are divided
between Roadshow and the ISP's. On the one hand, the ISP's
are required to take all the necessary steps and measures towards
disabling access to the infringing websites within a certain time.
This encompasses removing access from its content and to re-direct
people to another website. On the other hand, Roadshow is required
to establish and maintain (bearing all costs related to it) a
webpage informing users that the former one infringed copyright,
were subject to a judicial decision and as a result, all the
contents have been removed.
In the battle against intellectual property piracy, the Federal
Court has been given the opportunity to apply the Act and to give
relief to the entertainment industry. This judgment probably
constitutes the first of many future decisions against infringers,
but clearly constitutes a benchmark decision.
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.
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