For the first time since its enactment, the Federal Court of Australia has made orders under s115A of the Copyright Act 1968 (Cth) (“the Act”).
The provision, which came into force in July 2015, was intended to allow a remedy for preventing online locations from flagrantly disregarding the rights of copyright owners and facilitating access to infringing copyright content without implicating the carriage service providers (“CSPs”) unnecessarily.
The provision gives the Federal Court of Australia power to grant an injunction to require a CSP to take reasonable steps to disable access to an online location, if the Court is satisfied that:
- the carriage service provider provides access to that online location outside Australia; and
- the online location infringes, or facilitates an 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).
Inclusion of primary purpose is an intentional high threshold as it was intended to exclude websites that are mainly operated for a legitimate purpose but contain a small percentage of infringing content.
Copyright owners Roadshow and Foxtel sought relief under s115A of the Act against a number of carriage service providers (“CSPs”), including Telstra and Optus, requiring them to take reasonable steps to block access to certain websites, such as SolarMovie, Pirate Bay and Torrentz.
Nicholas J was satisfied that the identified websites were “online locations” situated on servers located outside Australia and access was provided to these websites by the respondent CSPs. It was established that copyright material owned by the applicants was made available online on the websites without a licence from the relevant copyright owners and the court was satisfied that the primary purpose of the websites was, at the time the proceedings commenced, to infringe or facilitate the infringement of copyright.
Further, in relation to the list of factors set out in s115A(5) of the Act that the Court may, in its discretion, take into account when determining whether to grant injunctive relief, Nicholas J was satisfied that all instances of infringing activities involved a flagrant disregard for the copyright owners’ rightsand the rights of other copyright owners.
At paragraphs 53-54 Nicholas J considered that while “online location” is not defined in the Act it could include a location, such as a website, that was online at the time the relevant proceeding was commenced but is not online either at the time of the hearing or at the time of granting the injunction. Therefore, in the Roadshow proceedings, despite the fact that some SolarMovie websites were, or at least appeared to be, off-line since July 2016, Nicholas J was satisfied that in the circumstances there was a substantial risk that the inactivity was merely temporary and did not warrant refusing relief under s115A to guard against the possibility that the website will be re-activated at some time in the near future.
The case demonstrates the intended prescriptive nature of s115A and its success in addressing a specific concern raised by copyright owners. However, there is a downside in that copyright owners will need to continue obtaining injunctions to have any new infringing websites, which seem to constantly appear, removed.
The full judgment can be found here.