Injunctions to force ISPs to block foreign websites: New remedy for copyright owners in battle again
The Copyright Amendment (Online Infringement) Act 2015 commenced operation on 27 June 2015. The Act amends the Copyright Act 1968 (Cth) to allow copyright owners to apply to the Federal Court of Australia for an injunction to force “carriage service providers” (CSPs) like iiNet and other internet service providers to block access to online locations outside Australia which have the primary purpose of infringing or facilitating the infringement of copyright.
The amendment is designed to target access to foreign websites which are otherwise difficult to pursue for copyright infringement through the traditional means provided for in the Copyright Act.
Amendment to the Copyright Act
The amendment inserts a new provision, section 115A, in to the Copyright Act. The provision gives exclusive jurisdiction to the Federal Court to hear and determine applications by copyright owners for an injunction to require CSPs to take reasonable steps to disable access to an online location. An application under section 115A is brought against the CSP rather than the operator of the foreign website, although the operator may be made a party on an application to the Court.
The Court may only grant the injunction if it is satisfied that:
(a) a carriage service provider provides access to an online location outside Australia; and
(b) the online location infringes, or facilitates an infringement of, the copyright; and
(c) the primary purpose of the online location is to infringe, or to facilitate the infringement of,
copyright (whether or not in Australia).
Section 115A(5) provides various matters which the Court may take into account in determining whether to grant the injunction, including:
- the flagrancy of the infringement;
- whether the online location provides programs, links, directories, indexes or other tools to assist copyright infringement;
- whether the owner or operator of the online location demonstrates a disregard for copyright generally;
- whether similar orders have been made against the online location in other countries;
- whether blocking the online location is a proportionate response;
- whether blocking the online location is in the public interest;
- whether the copyright owner has given notice of its application (to the CSP and the operator of the online location); and
- any other remedies available under the Copyright Act.
The Court also has the power to vary or rescind the injunction, or limit the duration of the injunction, under the new section.
Section 115A(9) specifically provides that CSPs will not be liable for any costs in relation to the proceedings unless they take part in the proceedings.
Criticisms of the website blocking amendment
The amendment was the subject of comprehensive consultation with CSPs, copyright owners and consumer groups. A report from the Senate Legal and Constitutional Affairs Legislation Committee detailed several concerns raised by stakeholders about the proposed legislation including:
- the effectiveness of website blocking against online piracy and whether alternative approaches would be more effective;
- the risk that the implementation of court orders could lead to over-blocking, or unintended blocking of legitimate websites;
- whether, where a website has been blocked, the Court should order that a landing page be provided which notifies visitors to that page that the site has been blocked by court order;
- who should pay the costs of the CSP implementing the injunction and whether CSPs should be indemnified by copyright owners for any proceeding brought against the CSP as a result of the blocking;
- whether the amendment sets too high a threshold for copyright owners to meet.
Ultimately, the recommendation of the Committee was that the amendment be passed. The Committee was of the opinion that the amendment should achieve its aim of targeting copyright infringement by online locations located outside Australia. The Committee also acknowledged that the amendment does not purport to be a full solution to the problem of online copyright infringement and that other approaches such as the proposed industry code would also assist with reducing online copyright infringement.
At the recommendation of the Committee, the Government has clarified certain matters in a revised explanatory memorandum to the amendment including that:
- The primary purpose test is not intended to capture Virtual Private Networks (VPNs) that are promoted and used for legitimate purposes, or merely used to access legitimate copyright material distributed in a foreign geographic market;
- The Court would have the power to order that the parties establish a ‘landing page’ at the disabled online location which could state that the online location has been disabled in accordance with a Federal Court order and detail the terms of that order;
- The Court has the discretion to give appropriate directions in relation to the costs of implementing the injunction and can take into account the fact that CSPs are not responsible for copyright infringement and that the benefit of the order will flow to copyright owners.
The Copyright Amendment (Online Infringement) Act 2015, together with the Dallas Buyers Club case currently before the Federal Court has caused considerable controversy and discussion around online copyright infringement. It will be interesting to see the response from copyright owners, CSPs and consumers, and whether the website blocking injunctions are effective in reducing online copyright infringement.
The Government has committed to reviewing the operation of the amendment in 18 months.