On 26 June 2015, website blocking legislation – the Copyright Amendment (Online Infringement) Act 2015 – came into effect.
The Act enables the Federal Court of Australia to order an internet service provider (ISP) to block access to an overseas website if:
- the website “infringes, or facilitates an infringement” of copyright; and
- the primary purpose of the website is to infringe, or facilitate the infringement of copyright (whether or not in Australia).
This is described in the Explanatory Memorandum (EM) as an “intentionally high threshold test”, and the purpose is to provide a remedy against online locations which “flagrantly disregard the rights of copyright owners”. The legislation is directed at the likes of Pirate Bay and Kickass Torrents (which have been the subject of similar blocking legislation in Ireland). The film and TV industries have been pushing for this legislation for some time because of the high level of downloading in Australia.
The primary purpose test is stated to exclude websites mainly operated for a legitimate purpose, but which may contain a small percentage of infringing content. The EM states that YouTube would not breach the primary purpose test and the EM claims that “Technology and technological change is not to be chilled or targeted by this amendment”.
The remedy against ISP’s is described as a “no fault” remedy – the copyright owner does not need to prove any wrong-doing on the part of the ISP. The amendment does not apply to Australian websites.
In order to obtain such an order, the copyright owner must notify the ISP and try and notify the overseas website, although the Court may dispense with this if the copyright owner is unable to do so.
In deciding whether to grant the order, the Court must take into account a long list of factors including:
- the flagrancy of the infringement or facilitation of infringement;
- r the website contains directories, indexes or categories of the means to infringe or facilitate infringement;
- whether the website operator shows disregard for copyright generally;
- whether the website has been the subject of overseas blocking orders;
- whether blocking is a proportionate response – e.g. the Court can look at the percentage of infringing content on the website or the frequency with which Australians access infringing material;
- the public interest;
- the impact on persons affected.
Blocking orders may be limited in time. The ISP is protected from legal costs of the action provided that it does not participate in the proceedings. Copyright owners using this provision may be ordered to give an undertaking as to any damage suffered by persons as a result of the order.