Introduction

Hot on the heels of the Dallas Buyers’ Club1 proceedings, copyright owners have been provided with another tool in their armoury to prevent infringement of their content.  But will it be the kryptonite copyright owners are seeking against piracy? Or will internet site blocking just bring further attention to the sites it is aimed to stop and simply prompt new ways of getting illegal content to those in the market for it?

Legislation Background

In July 2014, the Government released the Online Copyright Infringement Discussion Paper, which proposed amendments to the Copyright Act 1968 (the Act). The proposals aimed to improve the existing legal framework so that rights-holders, carriage service providers (CSPs) (also known as internet service providers (ISPs)) and consumer representatives could develop effective methods to reduce online copyright infringement.

On 26 March 2015, the Senate referred the Copyright Amendment (Online Infringement) Bill 2015 (the Bill) to the Legal and Constitutional Affairs Legislation Committee for inquiry and report. The Bill passed in the House of Representatives on 16 June 2015 and subsequently in the Senate on 22 June 2015.2 It will soon become law.

The main subject of the Bill is the new section 115A.  Section 115A enables copyright owners to apply for a Court order which requires CSPs to block access to an overseas website if that website has the primary purpose of infringing copyright, or facilitating the infringement of copyright.

How will section 115A work?

Under the Bill, a copyright owner can apply to the Federal Court for an injunction to require the CSP to take reasonable steps to disable access to an online location.

An injunction will be granted on the basis that:

  • the CSP provides access to an online location outside Australia;
  • the online location infringes, or facilitates an infringement of, the copyright; and
  • the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).

What Copyright Material is Covered?

While the focus of the new law has been primarily around film, television and music content and its piracy, the Bill is not limited to these works.  Conceptually therefore its application and use by rights holders may extend to software (including games), photographs and other types of copyright works.

What is a Primary Purpose?

The term "primary purpose" is not defined in the Bill. The Explanatory Memorandum3 however provides that the primary purpose test is intentionally high for the copyright owner to meet, as a safeguard against any potential abuse of the new laws.

What is an Online Location?

The term "online location" is also not defined in the Bill.  The Explanatory Memorandum provides that the term does include a website, but has otherwise been left intentionally broad in order to accommodate future technology.

Under the Bill, the copyright owner bears the responsibility of giving notice of the injunction application to both the CSP and the person who operates the online location. The Court may dispense with the requirement that the copyright owner give notice to the operator if the copyright owner has made reasonable, but unsuccessful, efforts to locate the operator.

The Bill further provides that the Court can limit the duration of the injunction, rescind or vary the injunction, on an application by the CSP, the copyright owner or another person prescribed by the Regulations of the Act.

Factors the Court will take into Account

The Bill provides a list of factors that the Court must take into account in determining if an injunction should be granted.  As set out in the Bill, these factors include:

  • "the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement
  • whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;
  • whether the owner or operator of the online location demonstrates a disregard for copyright generally;
  • whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
  • whether disabling access to the online location is a proportionate response in the circumstances;
  • the impact on any person, or class of persons, likely to be affected by the grant of the injunction;
  • whether it is in the public interest to disable access to the online location;
  • whether the owner of the copyright complied with subsection;
  • any other remedies available under this Act;
  • any other matter prescribed by the regulations;
  • any other relevant matter."

Potential issues with the Bill

The Bill requires that CSPs use "reasonable steps" to disable access to the infringing online location.  It does not, however, set out how the CSP should do this.  Several commentators have criticised the lack of definition here, asserting that there are numerous ways of blocking access to websites, and using the wrong method could result in a number of genuine websites being inadvertently blocked.

Conclusion

The Bill is being heralded as a win for Australian copyright owners.  Section 115A essentially provides a new means for copyright owners to protect their intellectual property rights and to disrupt the passage of content becoming available through offshore websites whose primary purpose is copyright infringement.

However, the proof will ultimately be in the actual effect of the blocking of particular sites.  Similar attempts at site blocking in the UK and EU have been described as futile, with alternate sites popping up very soon after infringing ones have been taken down; and facilities like VPNs (virtual private networks) also being used to “trick” the internet into believing the downloader is not in the country where the site is blocked.

From a copyright owner’s perspective, the remedy still also requires a Court proceeding and expenditure of legal costs.  If sites simply re appear, then following the trail and commencing actions respectively will obviously become expensive and perhaps a futile exercise.

The new laws also again raise issues as to internet censorship (which were raised in 2009 by the Communications Minister, Stephen Conroy, on a broader scale, and failed to gain support).  The issue as to the price of and release timing for content to Australian consumers (which some say is one of the issues underpinning the piracy of copyright material) is also likely to underpin many views of the new laws and their effectiveness.