Our recent article here examined the provisions of the Copyright Amendment (Online Infringement) Bill 2018 (Cth) (Bill). That Bill, which was first introduced to the Australian Parliament on 18 October 2018, was passed unamended by both Houses of Parliament on 28 November 2018 and is now in full force and effect.
The speed with which the Act was passed reflects that there was bipartisan political support for the Act. Notwithstanding that bipartisan support, a number of stakeholders have criticised the Act and its potential implications.
Key provisions of the Act
Prior to the commencement of the Act, section 115A of the Copyright Act 1968 (Cth) (Copyright Act) enabled a copyright owner to apply to the Federal Court for an injunction requiring a provider of internet services, a so called carriage service provider (CSP), to take reasonable steps to block access to overseas pirate websites. As noted in our earlier article, the key provisions of the Act expand that injunction regime in the following ways:
- a primary effect test: This amendment allows for an applicant to seek an injunction where an offshore site has the "primary effect" of infringing or facilitating the infringement of copyright. In other words, it will no longer be necessary, as had previously been the case, to establish that the primary purpose of a site is to achieve one of these outcomes
- extension to search engine providers: This amendment widens the scope of the regime to search engine providers, such as Google. An injunction may now be obtained against a search engine provider where a corresponding injunction is first granted in relation to a CSP. Such an injunction will require the search engine provider to take steps to block search results that refer to the location or locations blocked under the corresponding CSP injunction (for Australia only, not globally)
- adaptive injunctions: The Federal Court may now grant injunctions on terms that would allow the applicant copyright holder, on the one hand, and the applicable CSP or search engine provider, on the other, by agreement, to extend an injunction to domain names, URLs and IP addresses that start to provide access to the blocked location or locations after the injunction is granted.
Stakeholders were provided with the opportunity to have their views heard when the Bill was referred to the Senate's Environment and Communications Legislation Committee on 13 November 2018. Notwithstanding the short period given to the Committee to consider the Bill (with its report issued on 26 November 2018), the Committee received submissions from a wide range of stakeholders, from rights holders and their representative bodies, such as Village Roadshow Australia, APRA AMCOS and the Australian Copyright Council, to those entities and their representative bodies subject to the injunctions regime, such as Google, Communications Alliance and the Digital Industry Group Inc (the latter body counts amongst its members Google, Facebook and Twitter).
The main concerns expressed to the Committee were:
- the new primary effects test may capture legitimate websites: The Government, via the submission from the Department of Communications and the Arts (Department), contended that because the "primary" requirement remains a high threshold, and as there are checks and balances on the exercise of the injunction power, legitimate sites will not be captured
- extension to search engine providers is unprecedented internationally, without clear benefit: The Department on the other hand argued it is globally accepted that search engines have a key role to play in stopping copyright infringement and the injunction power is a "backstop" that would only be used if voluntary measures agreed by search engine providers were not successful
- adaptive injunctions are inappropriate as there is no judicial oversight: Although it is true that any extension of an injunction by agreement would not have judicial oversight, as the Department pointed out, the relevant CSP or search engine provider can simply withhold its consent to blocking a further site it had any doubts, meaning the copyright holder would need to go back to the Federal Court if it wished to pursue the matter.
A review in two years
Ultimately the Committee took the view that there were appropriate safeguards in section 115A of the Copyright Act to ensure the concerns raised would not materialise. Accordingly, the Committee recommended that the Bill should be passed, without amendment. But the Committee also recommended that the effectiveness of the newly amended section 115A of the Copyright Act is assessed in 2 years.
Time will tell if the changes to the injunction regime have the desired effect of reducing copyright piracy in Australia, without the negative side effects raised in submissions to the Committee, and this will be closely scrutinised in 2020.
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