The rapid pace of technological advancements versus the significantly slower rate of copyright law reform, coupled with the savviness of today's Internet user, have resulted in copyright infringements such as illegal movie downloads going largely unchecked in Australia. But in light of recent copyright law developments in Australia, the tide is shifting in favour of copyright owners.
In Dallas Buyers Club LLC v iiNet Limited  FCA 317 (click here to read our recent article on it), the copyright owners of the movie Dallas Buyers Club were successful in obtaining a court order requiring several internet service providers to divulge the names and physical addresses of approximately 4,700 customers alleged to have infringed copyright in the movie by having illegally downloaded it.
More recently, the Australian communications industry submitted an industry code to combat internet piracy. The Government also introduced a bill to enable copyright owners to apply for court orders to disable access to overseas websites that infringe, or authorise the infringement of, copyright.
COPYRIGHT NOTICE SCHEME CODE 2015
In the Dallas Buyers Club case, the copyright owners were successful in gaining preliminary discovery orders requiring several Australian internet services providers (ISPs) to disclose the details of their customers associated with IP addresses alleged to have unlawfully shared the film.
Recently, the Australian communications industry finalised a new Code of practice, the Copyright Notice Scheme Code 2015, which is designed to, among other things, reduce the rate of online copyright infringement in Australia and educate internet users as to which online activities can amount to copyright infringement.
The Code will apply to residential internet accounts only. The Code has a strong emphasis on educating the alleged infringers about copyright and encourages copyright owners and ISPs to work together to combat online copyright infringement. The Code creates a Copyright Notice Scheme (the Scheme) that will generally operate as follows:
- A copyright owner will identify the IP address of an alleged copyright infringer and send an infringement report to the ISP.
- The ISP will then send a series of infringement notices to the alleged infringer (that is, one of its account holders) to seek to change the alleged infringer's behaviour and help direct that person toward lawful sources of content.
- If a particular account holder receives three notices within a period of 12 months, the copyright owner may request the ISP to disclose the IP address of that account holder.
- The ISP can then co-operate with the copyright owner to provide such information.
The Scheme contains strong safeguards against any threat to the privacy of account holders. Therefore, even after a final notice is issued by the ISP, the copyright owner will need to obtain appropriate court orders for preliminary discovery before the ISP is required to disclose the identity of that account holder to the copyright owner.
The Scheme is due to commence on 1 September 2015.
COPYRIGHT AMENDMENT (ONLINE INFRINGEMENT) BILL 2015 (THE BILL)
The Bill proposes that upon application by a copyright owner, the Federal Court can grant an injunction requiring a carriage service provider (CSP) (for example, an internet service provider) to take reasonable steps to block access to an "online location" outside Australia that has the primary purpose of infringing, or authorising the infringement of, copyright. The Bill refers to an "online location" rather than a "website" to cover existing and future technologies.
Similar laws are already in place in the UK pursuant to which access to websites such as IPTorrents and TorrentDay have been blocked.
The "primary purpose" test has a high threshold to avoid any potential abuse and the Court will be required to consider a number of factors in determining whether or not an injunction should be granted, including:
- the flagrancy of the infringement or its facilitation;
- whether disabling access to the online location is a proportionate response in the circumstances;
- the impact on any person likely to be affected by the grant of the injunction; and
- whether it is in the public interest to disable access to the online location.
The granting of an injunction will not create a presumption that a CSP has infringed or authorised infringement. Instead, it is designed to be a quick, temporary and a 'no-fault' solution before more lengthy and permanent avenues are sought by the copyright owner.
The Senate Legal and Constitutional Affairs Committee is currently deliberating and is due to report back on 29 May 2015.
WHAT DOES THIS MEAN FOR COPYRIGHT OWNERS?
The introduction of the Scheme will not enable copyright holders to gain access to an individual infringer's identity without appropriate court orders. However, it will streamline the position that ISPs take in respect of an application by a copyright owner for preliminary discovery orders similar to those that were sought in the Dallas Buyers Club case. The Code provides that the ISPs will act reasonably in relation to such applications. This will more likely than not result in less objections being raised by the ISPs to the granting of preliminary discovery orders in respect of their account holders.
If this Bill is passed, copyright owners in Australia will be able to apply for an injunction requiring CSPs in Australia to take reasonable steps to block access to overseas websites that infringe, or authorise the infringement of, copyright online. This will provide one suitable solution to the problem of online copyright infringement.
The injunction power will not apply to online locations hosted in Australia. In that regard, the Copyright Act already enables copyright owners to commence copyright infringement proceedings against the operators of locally hosted online locations.