On 26 March 2015, the Copyright Amendment (Online Infringement) Bill 2015 was introduced into the Australian Parliament.
The Bill proposes to give the power to the Federal Court of Australia to grant injunctions to require internet service providers (“ISPs”) to take reasonable steps to disable access to online locations outside Australia that are used to infringe or facilitate the infringement of copyright (“blocking injunction”). It allows copyright owners to apply for a blocking injunction against an ISP without the need to establish that the ISP itself was infringing copyright. The proposal follows similar legislation in European countries, including the UK.
In the Bill’s current form, the copyright owner must establish three matters before the Court can grant a blocking injunction:
- “a [internet service provider] provides access to an online location outside Australia”;
- “the online location infringes, or facilitates the 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)”.
In determining whether to grant the injunction, the Court must take into account a number of factors, including: the flagrancy of the infringement or facilitation of infringement; whether the operator of the foreign online location shows a general disregard for copyright; whether access to the online location has been disabled by any foreign court based on copyright infringement; whether a blocking injunction is a proportionate response in the circumstances; the impact on affected persons; the public interest; and whether the copyright owner has other remedies available to them under the Copyright Act 1968.
The Bill is intended to streamline online copyright infringement cases in a number of ways. First, the injunction can be granted without requiring the copyright owner to establish that the ISP was infringing copyright. In that respect, the proposal appears to overcome Roadshow Films v iiNet, where the High Court of Australia held that the ISP in that case was not liable for copyright infringements of its users. Secondly, while the copyright owner must notify the operator of the foreign online location about the owner’s application for a blocking injunction, the operator is not a party to the proceeding unless it applies to join the proceeding. Thirdly, the Bill incentivises ISPs not to participate in the proceeding by making them not liable for costs unless they choose to appear and participate.
The explanatory materials to the Bill suggest that the third requirement – “the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright” – is intended to set a “high threshold test” to avoid abuse of blocking injunctions. However, given that ISPs are incentivised not to appear in the proceeding, and the operator of the foreign online location is unlikely to appear, the practical extent of that threshold is unclear. Assuming usual Court procedure will apply to such applications, the respondent, in this case the ISP, is required to appear in the proceedings. If it fails to do so, the copyright owner can apply for default judgment under rule 5.23(2)(c) of the Federal Court Rules 2011. The case law on default judgment suggests that, in those circumstances, the copyright owner may not be required to prove its case by evidence. For example, in Speedo Holdings BV v Evans (No 2)  FCA 1227, the Federal Court granted an injunction on the basis that the statement of claim pleaded all the facts amounting to trade mark infringement and the basis for the injunction. Therefore, notwithstanding the apparently high bar set by the “primary purpose” requirement, it may be possible for a copyright owner to obtain a blocking injunction without filing any evidence at all.
An important consideration for copyright owners is the cost of obtaining a blocking injunction compared with the benefit obtained. The total filing fees for an unlisted company to commence a proceeding in the Federal Court and to file an application for default judgment are AU$4,340. The operator of a foreign online location that has been blocked could avoid the effect of a blocking injunction by moving to another foreign location for what we imagine would be a relatively low cost. The copyright owner would then be forced to make another application for a blocking injunction in respect of the new foreign location, which would require preparation of a new case, additional legal costs and the payment of additional fees. Given the significant costs of making multiple blocking injunction applications, we believe that copyright owners would only apply for blocking injunctions to block the most contumelious of online locations.
The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report on the Bill in mid-May 2015.