The Australian Government is proposing significant amendments to the Copyright Act 1968, intended to target online piracy. The key proposals would extend the potential liability of ISPs for authorisation of copyright infringement and allow rights holders to seek injunctions making ISPs block access to overseas websites.

The proposals were announced on 30 July 2014 in the Government's Online Copyright Infringement Discussion Paper.  They contemplate a new legal framework which would impose a greater onus on ISPs to police online piracy.

The Government has said that it wants to change the law following the High Court decision in Roadshow Films Pty Ltd & Ors v iiNet Ltd [2012] HCA 16 (20 April 2012), by expanding the circumstances in which ISPs could have liability for authorising copyright infringement by subscribers.  The proposed new focus would be on whether reasonable steps were taken to prevent or avoid the infringement, with the absence of a direct power to prevent infringement not being decisive, but only one of several factors to be considered.   

The Government has indicated that it believes that even where an ISP does not have a direct power to prevent a person from doing aparticular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement more broadly

The proposals would allow rights holders to obtain orders against an ISP to block access to identified internet websites operated outside Australia where the dominant purpose of the website is to infringe copyright.  There would be no need to establish that a particular ISP had authorised infringement.  There would also be the option of listing several ISPs in the order, reducing the incidence of evasion of such orders by switching service providers.

The Safe Harbour scheme would also be amended to make it clear that organisations other than ISPs, such as universities, can take advantage of the scheme.  The proposal is to replace the reference to carriage service provider with a broader definition of service provider to include organisations which provide network services, but not to the public.

The Discussion Paper poses a number of questions, including:

  • How are costs best shared between industry participants? 

  • What matters should the Court consider when determining whether to grant an injunction to block access to a particular website?

  • What impact are the proposals likely to have on organisations?

Industry views are also sought on alternative measures that may be more effective in reducing online copyright infringement, presenting a unique opportunity for rights holders and ISPs to influence the final legislative outcome.

The Government has sought submissions from interested parties by 1 September 2014.