The Federal Government has proposed to extend authorisation liability for copyright infringement, to allow courts to issue an injunction to block infringing overseas websites and to extend the safe harbour to online intermediaries.
On 30 July 2014, the Government released its Online Copyright Infringement Discussion Paper ("Discussion Paper"). The proposals are of most interest to copyright owners, to ISPs and to online intermediaries, although the proposed authorisation amendment to the Copyright Act 1968 (Cth) ("the Act") may have a broader application.
Submissions in response to the Discussion Paper are due on 1 September 2014.
Authorisation and an industry or regulated notice scheme
The first proposal in the Discussion Paper is a proposal to extend liability for authorisation of copyright infringement by way of amending the authorisation provisions contained in ss 36(1) and 101(1) of the Act. The amendment is designed to alter the state of authorisation liability following Roadshow Films v iiNet, in which the High Court held that iiNet was not liable for authorising the copyright infringements of its subscribers. The amendments to ss 36(1) and 101(1) are intended to have the effect that an absence of a power to prevent infringement does not preclude a party from taking reasonable steps to prevent infringement.
The Government's preference is for industry to reach an agreement on what constitutes reasonable steps - that is, to develop a scheme or arrangement, such as a notice scheme. The Discussion Paper refers to the voluntary notice schemes in the US and the UK and to the statutory three strikes scheme in New Zealand. In the event of a failure to reach industry agreement, the Discussion Paper states that the Government will regulate such a scheme.
While the Government attention appears to be focused upon the effect of the amendments on rights holders and ISPs, the proposal to amend the authorisation provisions may not be so limited and may have broader ramifications for other areas of copyright law and other intermediaries.
The second proposal in the Discussion Paper is to allow a rights holder to apply to the court for an order against an ISP that would require the ISP to block access to an overseas infringing website. Before making such an order, the court would first have to be satisfied that the dominant purpose of that website was to infringe copyright.
The website blocking provision would be similar to provisions that have been enacted and applied by the courts in the UK and in Ireland.
This proposal primarily affects copyright holders and ISPs.
The third proposal in the Discussion Paper is to extend the safe harbour in ss 116AA to 116AJ of the Act to all service providers. The current safe harbour limits the remedies available for copyright infringement when a carriage service provider (eg an ISP) carrying out certain activities (acting as a mere conduit, caching, storing or referring) meets certain conditions. The government's proposal would extend this safe harbour to all service providers.
This safe harbour will be of particular interest to rights holders and intermediaries, in particular, online intermediaries.
The Discussion Paper also asks for submissions as to:
- whether there are alternative measures to reduce online copyright infringement that may be more effective;
- how the impact of any measures to address copyright infringement can be measured; and
- whether the proposals will have any unintended implications or create additional burdens for entities other than rights holders and ISPs.