On 11 June 2015, the Senate Standing Committee on Legal and Constitutional Affairs (SCLCA) released its long-awaited report on the proposed Copyright Amendment (Online Infringement) Bill 2015, with consequences for copyright owners and licensees, internet service providers (ISPs), and online service providers and website operators.
The bill, if ultimately passed into law in its current form, will allow rights holders to apply to the Federal Court for injunctions compelling ISPs to block access to overseas websites which facilitate copyright infringement. The Federal Court may grant the injunction, indefinitely or for a period of time, subject to:
(a) the website being operated outside Australia;
(b) the ISPs providing access to the website;
(c) the website infringing, or facilitating infringement of, the copyright; and
(d) the primary purpose of the website being to infringe, or facilitate infringement of, copyright.
Where an injunction is sought, the Court must take into account various matters including:
(a) the flagrancy of the infringement or facilitation, and any demonstrated disregard for copyright by the website operator;
(b) any similar orders made in a foreign jurisdiction in respect of that website;
(c) the proportionality of disabling access to the website as a response to infringement or facilitation of infringement, the impact of any person or class on disabling access, and the availability of other remedies to the rights holders under the Copyright Act 1968 (Cth); and
(d) public interest considerations.
The European Union and United Kingdom have recently made similar moves requiring ISPs to block websites which enable or facilitate copyright infringement.
As may be expected, the bill has been largely supported by rights holders, with a more cautious response from ISPs. A report by the Parliamentary Joint Committee on Human Rights has also questioned whether the bill disproportionately favours rights holders at the cost of the right of ordinary internet users and operators for free and legitimate expression and the right of website operators alleged to have infringed copyright to a fair hearing.
These concerns appear not to be shared by the SCLCA, which recommended that the bill be passed with only minimal amendments including that the Court should not be required to consider all of the matters discussed above when considering an application for an injunction.
In justifying its proposed amendments (or lack thereof), the SCLCA indicated that it felt the most effective protection against abuse of the injunction and website blocking process would be to allow the Court to exercise broad discretion in the exercise of its power to grant an injunction.
In what may be seen as a concession to “free internet” advocates, the SCLCA did make a recommendation that the effectiveness of the new law be reviewed two years after implementation, at which time exceptions (e.g. safe harbour provisions) could be considered.
It is worth noting that the Labor members of the SCLCA made additional recommendations that the government conduct more sweeping reform of copyright law. Senator Scott Ludlam, the sole Greens member of the SCLCA, unequivocally dissented with the rest of the SCLCA and recommended that the bill not be passed on the grounds that the bill would hinder free expression and the fair hearing of alleged infringements, and be technically impractical to implement.
The government has indicated that it would seek for the bill to pass both houses during the June 2015 sitting session of parliament before the winter recess. It is anticipated that the opposition will support the bill.
We will continue to follow the progress of the bill through the next parliamentary session.