Australia strengthens online copyright protection

30 April 2015

Sally Barber, Shane Barber

The Australian parliament is currently considering new legislation to further protect intellectual property rights in the online environment, with a view to filling an existing void in Australian copyright legislation.

What is the Bill and what is its purpose?

The Copyright Amendment (Online Infringement) Bill 2015 (Bill) is intended to amend the Copyright Act 1968 (Cth) (Act) by inserting a new section 115A.

The purpose of the Bill is to reduce online copyright infringement, by enabling a copyright owner to apply to the Federal Court of Australia for an order requiring a Carriage Service Provider (CSP) to block access to an overseas online location that has the primary purpose of infringing copyright or facilitating the infringement of copyright.

A high threshold test to the granting of an injunction has been set, as the purpose of the Bill is to provide a specific and targeted remedy aimed at online locations that flagrantly disregard the rights of copyright owners, by facilitating access to infringing copyright content.

The Bill recognises the difficulties involved in taking direct enforcement action against entities operating outside Australia that provide Australian consumers with access to infringing content. The remedy provided for is a no-fault remedy against CSPs that requires them to address third party copyright infringement, where they are in a position to do so.

How will the Bill affect copyright owners and exclusive licensees if it becomes law?

Assuming the Bill is passed in its current form, it will operate as set out below:

  • It will provide copyright owners and exclusive licensees with a streamlined procedure to obtain injunctions to disable access to infringing online locations – without the need to prove infringement or authorisation of infringement against the relevant CSP.
  • The application for an injunction would be made to the Federal Court of Australia, and the form of injunction would require the CSP to take reasonable steps to disable access to the infringing online location – with no need to implicate the CSP in the infringement or for the CSP to participate in proceedings.
  • The injunction power will only apply to online locations operated outside Australia.
  • The Court must be satisfied that the CSP is providing access to an online location operated outside Australia.
  • The provisions will only apply to online locations that have the primary purpose of infringing copyright or facilitating the infringement of copyright (thereby excluding online locations that are predominantly legitimate, but which contain low levels of infringing content), such as websites that provide torrent files, links to infringing material or storage of infringing material.
  • Before granting an injunction, the Court must take into account a number of factors, which set an intentionally high threshold test, including:

    • the flagrancy of the infringement or its facilitation

    • whether the online location makes available the means to infringe e.g. whether the online location indexes, or provides directories of, the means to infringe (this is intended to capture websites that compile links or programs to assist in copyright infringement, rather than websites primarily comprising user-generated content);

    • whether the online location is of a nature that shows a disregard for copyright generally;

    • whether access to the online location has been disabled by orders from a court of another country;

    • whether disabling access to the online location is a proportionate response in the circumstances (by considering e.g. the level of infringing as against legitimate content at the online location, the frequency of access by Australian consumers);

    • the impact on any person likely to be affected by the grant of the injunction (including the relevant CSP);

    • whether it is in the public interest to disable access to the online location (such as by considering the public interest in freedom of access to information); and

    • other remedies available e.g. remedies against the CSP under section 115 of the Act.
  • The Bill would have no effect on existing laws on infringement, copyright exceptions or limitations, authorisation liability or any of the safe harbour conditions.

The injunction remedy provided for is a standalone, no-fault remedy that does not create a presumption of infringement or authorisation of infringement against the CSP. However, CSPs would be able to contest the granting of an injunction in the usual way. Reasonable steps to give notice of the application to the operator of the online location would also have to be made, which would have the opportunity to seek to be joined to the proceedings.

The Court is given the power to rescind an injunction made under the Bill, with the intention that, for example, an injunction could be lifted where an infringing online location changes to a legitimate business model.

What is the current status of the Bill?

The Bill has been introduced into the House of Representatives. The Senate Legal and Constitutional Affairs Legislation Committee (Committee) is currently reviewing the Bill, following the close of public submissions on 16 April 2015. Thirty nine submissions were received from various interested parties, including peak bodies representing content owners. The Committee's report on the Bill is due on 13 May 2015.

Once passed, the Bill will become law upon receiving the Royal Assent.

Authors

Sally Barber

Sally Barber

Special counsel
Australia

Call me on: +61 2 9226 9888
Shane Barber

Shane Barber

Managing Partner
Australia

Call me on: +61 2 9226 9888