The High Court of England and Wales has used its powers under UK copyright law to force the five main internet service providers (ISPs) in the UK - BT, Virgin Media, Sky, TalkTalk and EE - to block access to seven foreign websites hosting pirated e-books. Similar powers will be introduced into Australian law once the Copyright Amendment (Online Infringement) Bill 2015 (Cth) receives royal assent.
Under section 97A of the Copyright, Designs and Patents Act 1988 (UK), the High Court of England and Wales has the power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their services to infringe copyright. The High Court has used these powers in relation to seven off-shore hosted book websites that provided a collection of pirated e-books, ranging from Harry Potter to university textbooks to scientific papers. It is claimed by the Publishers Association (who brought the action) that over 80% of the material available on the relevant websites infringes copyright.
This is the first action of its kind brought by British publishers, with previous orders being made with respect to copyright-infringing music and film.
The ability to force ISPs to block these websites is particularly useful in relation to off-shore hosted websites, such as the seven involved in this case. In a previous action against AvaxHome, (which is one of the websites involved in this action) AvaxHome was ordered to pay $37.5million by a US court. However, given that the site is hosted in Russia, it is considered unlikely by many commentators that the amount will actually be paid. Section 97A of the UK Act, therefore, provides another avenue for copyright owners and representatives to restrict the illegal provision and use of copyrighted material.
Under section 115A of the Copyright Amendment (Online Infringement) Bill 2015 (Cth), which passed both houses of Parliament on 22 June 2015, it will be possible to apply to the Federal Court for an order requiring that an ISP block access to an online location that has the primary purpose of infringing copyright or facilitating the infringement of copyright, without first having to establish the ISP's liability for copyright infringement or authorisation of copyright infringement. These new powers will only apply to websites hosted outside Australia. For websites hosted within Australia, it is expected that rights holders will take action directly against such websites under the existing provisions set out in section 115. The Bill is expected to receive royal assent in the next week.