The Copyright (Online Infringement) Bill 2015 (Bill) was introduced to the House of Representatives on 6 March 2015 by Communications Minister Malcolm Turnbull. The proposed legislation will enable content owners to apply to the Federal Court for an order requiring an internet service provider (ISP) to block access to sites having a primary purpose of, or that facilitate, copyright infringement. This new injunctive power would only apply to sites operated outside Australia.
Before granting an injunction, the Court must take into account a number of factors, including:
● the flagrancy of the infringement or its facilitation;
● whether blocking access to the website is a proportionate response;
● the potential impact on anyone likely to be affected by granting the injunction; and
● whether it is in the public interest to block access.
In making an application, it will not be necessary for content owners to establish the ISP's liability for copyright infringement, and the granting of an interim injunction will not create a presumption that the ISP has infringed or authorised the infringement of copyright.
The Explanatory Memorandum states that the introduction of the site-blocking regime is estimated to cost a total of $130,825 to ISPs per annum, which has fuelled speculation that this cost will be passed on to consumers without a compensation arrangement. Critics are also concerned that the Bill does not explain how websites will be blocked, stating only that ISPs involved in injunction applications must ‘take reasonable steps to disable access to the particular online location.’
The Bill will now be referred to a Senate Legal and Constitutional Affairs Legislation Committee for review, and a report is expected within six weeks.
For more information, please contact Anne-Marie Allgrove, Toby Patten or Jarrod Bayliss-McCulloch.