The Federal Court has delivered its first substantive decision concerning the operation of s. 115A of the Copyright Act. Section 115A enables copyright owners to apply for injunctive relief requiring internet service providers (ISPs) to block access to websites which facilitate copyright infringement.
There seems little doubt that the provision may be used to prevent access to websites, such as file sharing websites, which allow users to download copyright protected films and television programmes. It remains to be seen whether the provision may be used to apply to a broader range of sites which facilitate copyright infringement, such as sites that allow the purchase of infringing material.
Roadshow Films v Telstra1
One of the major challenges for copyright owners presented by the advent of increasingly sophisticated technology has been the ease with which internet users may download infringing material.
The difficulty occasioned by prosecuting claims against individual users (which may be practically impossible and cost prohibitive) has led content owners to rely on the provisions of the Copyright Act concerning the liability of intermediaries who authorise infringement.
Courts have experienced little difficulty in finding parties who operate websites from which copyright protected films and music may be downloaded liable for infringement by reason of authorising infringement2. Taking action against website operators, however, presents significant practical difficulties for content owners, as website operators are often difficult to identify or located in other jurisdictions.
The difficulties posed by such action has led content owners to look to the liability of ISPs in respect of authorisation of copyright infringement. Generally, however, the court has found that ISPs are not liable for infringement by customers who use the internet to download copyright infringing material3.
To address content owners’ concerns, in 2015, the Copyright Act was amended by the introduction of s. 115A. This provision enables content owners to apply to for an injunction requiring ISPs to block access to overseas websites. The section empowers the Federal Court to grant an injunction to block access to a website if the primary purpose of the site is to infringe or facilitate infringement of copyright. The provision provides a “no fault” remedy against a ISP. Accordingly, the content owners’ entitlement to relief does not depend upon it establishing that the relevant ISP has committed an infringement of copyright either by its own acts or by authorising the acts of another person.
In the first substantive decision regarding the provision , the Federal Court has ordered a number of Australian ISPs to take reasonable steps to disable access to a number of file sharing websites, including Pirate Bay, Torrentz and SolarMovie.
The websites in question allowed users to access copyright protected films and television programmes free of charge. There was no real dispute between the parties that the primary purpose of these sites was to facilitate infringement of copyright. The parties were in dispute as to whether the ISPs or content owners should pay the costs associated with complying with the injunction and whether the content owners should be able to issue a notice to the ISPs upon identifying mirror sites rather than seeking further court relief.
The Court found that the ISPs in question gained no commercial benefit by providing access to the websites that actively encourage copyright infringement. Therefore, the Court formed the view that the ISPs should not pay these compliance costs and ordered the content owners to pay a set amount per domain blocked.
As to the second issue, the Court considered that it was not appropriate that the ISPs be ordered to block access to mirroring websites upon receiving notice from a content owner. Instead the Court ordered that in the event that a new online location was identified, it was appropriate that the Court consider whether a variation to the injunction orders should be made. In doing so, the Court noted that, as it had already granted the injunction, such an application could be made without incurring significant expense.
The Federal Court did not have any great difficulty in finding that the threshold requirements of s. 115A of the Copyright Act were satisfied. There was no dispute that the relevant file sharing websites were properly characterised as online locations whose primary purpose was to infringe or facilitate infringement of copyright.
The question remains as to when an online location will be considered one whose primary purpose is to infringe or facilitate infringement. At this stage, it is not clear whether it may extend beyond sites that allow for digital download of infringing material to, for example, sites that allow users to purchase copyright infringing materials, such as clothing and artworks.