For perhaps the first time since the Copyright Amendment (Online Infringement) Act 2015 (Website Blocking Act) became law, there has been the publication of a demand for an internet service provider (ISP) to block access to an overseas website. More particularly, residential builder Simonds Homes has demanded that a small (as yet unnamed) ISP block access to a website hosted in India.
As reported previously on this blog, where an overseas online location's 'primary purpose' is to engage in copyright infringement, under new section 115A of the Copyright Act, a rights holder can apply to the Federal Court to obtain an injunction requiring the ISP to block access to that online location.
Until tested in the courts, the specifics of the 'primary purpose' test remain somewhat unclear. The supplementary explanatory memorandum to the legislation (EM) states that an online location may have the primary purpose of infringing, or facilitating the infringement of, copyright, 'even if the operator of the location derives a commercial advantage or profit from the operation of the location'. As we have discussed previously, this statement is not entirely consistent with the recommendations of the Legal and Constitutional Affairs Legislation Committee that it was intended to address.
According to Simonds Homes' lawyers, the website of Indian company CHM Constructions (located at http://www.chmconstructions.com) (CHM Website) falsely purports to have a licence or other relationship with Simonds Homes, and contains infringing material owned by Simonds Homes (which, from our visit to the site, includes Simonds Homes' logo).
So why has Simonds Homes targeted a small ISP? Perhaps it had little success in directly approaching CHM Constructions to have its proprietary materials removed. We also suspect that, by targeting a small ISP – who may not have the financial resources or appetite to contest a copyright claim – it was attempting to set a precedent for larger ISPs following suit.
The Federal Court retains the discretion as to whether to grant an injunction under section 115A. Section 115A(5) sets out a number of factors that the Court may take into account, including:
- whether disabling access to the online location is a proportionate response in the circumstances;
- whether it is in the public interest to disable access to the online location; and
- any other remedies available under the Act.
Assuming this matter ever came before it, it would be fascinating to how the Federal Court, in applying these discretions, interprets concepts such as 'proportionality' and 'public interest' . In determining proportionality, the revised explanatory memorandum to the legislation provides that the court may, for instance, 'consider the percentage of infringing content at the online locations compared to the legitimate content, or the frequency in which the infringing material is accessed by subscribers in Australia'. Similarly, an Information Sheet issued by the Australian Copyright Council in relation to section 115A suggests that the court may consider whether '[a] website might have a substantial or significant non-infringing purpose...or the website may not have many Australian visitors'.
In Europe, the Court of Justice of the European Union and the European Court of Human Rights assess the principle of 'proportionality' in light of the Convention for the Protection of Human Rights and Fundamental Freedoms, including the freedom of expression under Article 10. Australia, of course, lacks any such charter or bill of rights – including, most relevantly in the context of website blocking, the right of freedom of speech.
Meanwhile, it remains to be seen how the large rights holders plan to utilise the Website Blocking Act in a more 'traditional' internet piracy context.