Graham Phillips

Online copyright infringement – site blocking bill

Graham Phillips

30 March 2015

Copyright

 

On 26 March, the Government introduced the Copyright Amendment (Online Infringement) Bill 2015, a Bill that would enable copyright owners to apply to the Federal Court for an order requiring a Carriage Service Provider (CSP) to block access to websites that infringe copyright.

 

Some comments:

 

  • Copyright owners can obtain an injunction requiring CSPs to take ‘reasonable steps’ to disable access to overseas online locations. Reasonable steps isn’t defined. The explanatory memorandum states that this may include blocking subscribers from accessing the site. The technical means to be adopted by the CSP to block access are not defined, though the EM does refer to a UK case that set out detailed orders about the technical means. As taking ‘reasonable steps’ is a key element in determining whether a person has authorised copyright infringement under section 101(1A) of the Copyright Act 1968 – the clause in play in the Roadshow v iiNet proceeding in which our firm acted – it would be preferable for the Bill to provide more guidance on what amounts to taking ‘reasonable steps’.

 

  • Injunctions can be obtained where the ‘primary purpose’ of the overseas locations is to infringe or to ‘facilitate’ the infringement of copyright. The ‘primary purpose’ test is intended to set a high threshold for the copyright owners to meet, though there may be some uncertainty in the interpretation of this test, as well as in what ‘facilitate’ means.

 

  •  CSPs are not liable for costs in relation to the injunction application, unless they enter an appearance and take part in the proceedings. If they do take part in the proceedings, they may face liability for costs, at the discretion of the Court.

 

The Bill has been referred to a Senate Committee, which is due to report on 13 May. The Committee is likely to seek submissions.