The Copyright Amendment (Online Infringement) Bill 2015 (Bill) was passed into law on Friday 26 June 2015. As we reported in the April 2015 edition of Legal Bytes, the new anti-piracy provision (section 115A of the Copyright Act 1968 (Cth)) will enable content owners to seek 'blocking injunctions' from the Federal Court against internet service providers (ISPs). These injunctions will require an ISP to block access to overseas websites where the content owner can establish that 'the primary purpose' of the website is 'to infringe, or to facilitate the infringement of, copyright'.
The Senate Legal and Constitutional Affairs Committee rejected various submissions to amend the proposed new section 115A, including a proposal to define the term 'primary purpose'. On this point, Foxtel submitted to the Senate Committee that the lower threshold of overseas websites with 'a substantial purpose or effect' of infringing copyright, or at least 'a' primary purpose (as opposed to 'the' primary purpose) should be accepted. However, the Explanatory Memorandum states that a high threshold will be applied to the 'primary purpose' test, such that the legislation will not apply to websites that operate primarily for a legitimate purpose, even if those websites (for example, YouTube) still technically contain infringing content.
Virtual Private Networks (VPNs) that are used for legitimate purposes, or used to access copyright content licensed for distribution outside Australia, are not the target of the legislation, as indicated by both the Explanatory Memorandum and by Communications Minister, Malcolm Turnbull. However, as the Senate Committee also rejected including a specific exemption for VPN providers, there remains scope for VPNs to become the subject of blocking injunctions if they are used for the primary purpose of infringing or facilitating the infringement of copyright.
The final form of the Bill can be accessed here.