In its final report, released yesterday and available here, the Australian Senate Legal and Constitutional Affairs Legislation Committee recommended that draft legislation be passed granting the Federal Court the power to grant blocking injunctions in respect of foreign copyright infringing websites, subject to several proposed changes to the current Bill.
This is the latest step towards Australia implementing a power for copyright owners to obtain injunctions against foreign-based websites that make a business out of infringing copyright, yet are outside the jurisdiction of Australian courts. Readers will be aware that such injunctions are being used to great effect abroad including (relevantly from an Australian common law perspective) the UK. It follows a consultation process with rights holders, intermediaries and other public interest groups, during which a range of submissions were made on the proposed implementing legislation.
The Committee’s report is based on a recognition that “online copyright infringement poses a significant threat to the viability and success of Australia’s creative industries”, that “rights holders need effective mechanisms to reduce the incentive for infringing practices” and that (subject to its recommendations) “the Bill should achieve its aim of targeting copyright infringement by online locations located outside Australia”. The Committee’s recommendations for changes to the Copyright Amendment (Online Infringement) Bill 2015 are as follows:
- the list of matters to be taken into account by the court in determining whether to grant an injunction (s 115A(5)) should be an inclusive, rather than a prescriptive list. This is an appropriate change which reflects the Committee’s view that “the Court should be able to exercise discretion in identifying the salient features of each matter on a case-by-case basis”;
- the legislation should specify that ‘reasonable steps to disable access to an online location’ may include the use of a landing page specifying details of the blocking order. This is a common practice in jurisdictions where blocking injunctions are granted;
- the Government should conduct a formal review of the effectiveness of the legislation in two years’ time. Such a review would allow any unexpected issues with the law and practice in this new area to be addressed;
- the Bill should be amended to provide greater clarity on costs, the Committee’s view being that “questions of cost should be a matter for the Court to determine, on a case-by-case basis.” This would leave it open to the Federal Court to follow the UK approach whereby ISPs are responsible for the costs of implementing the blocking orders (such costs having been considered by the Court prior to granting the orders).
Overall, the Committee’s report is a positive development that puts Australia well on the way to having a site blocking remedy available to copyright owners in the near future.