The Australian Senate’s Environment and Communications Legislation Committee is undertaking an inquiry into the Copyright Amendment (Online Infringement) Bill 2018 and is due to report on 26 November 2018. Given there is bipartisan political support for the Bill, which will expand the rights of copyright holders to obtain Federal Court injunctions to block offshore pirate websites, it is expected the Committee will endorse the Bill and that it is likely to become law before the end of 2018.
Existing site blocking regime
The site blocking regime first commenced in 2015 (see our previous article here). That regime, as contained in section 115A of the Copyright Act 2015 (Cth)(the Act), enables a copyright owner to apply to the Federal Court for an injunction requiring a provider of internet services, a so called carriage service provider (CSP), such as Telstra or Optus, to take reasonable steps to block access to an overseas pirate website or websites. Blocking such sites is seen as an effective remedy for copyright owners, given the difficulty of pursuing infringers who do not have a presence in Australia.
Under section 115A of the Act, as it currently exists, for an injunction to be granted:
- the CSP must provide access to a site operated outside Australia
- the site must infringe, or facilitate the infringement of, copyright
- the primary purpose of the site must be to infringe, or to facilitate the infringement of, copyright.
The Federal Court is required to take into consideration a number of factors in determining whether to grant an injunction, including how flagrant the action of the site operator is, whether the site operator has shown a general disregard for copyright and whether blocking the site is a proportionate response.
It took some time before the site blocking regime was first used, with the first case being Roadshow Films Pty Ltd v Telstra Corporation Ltd  FCA 1503. The Roadshow case, and a few subsequent cases, have largely set precedents for when the Federal Court will grant an injunction, the specific form the injunction will take and which parties will bear what costs (with costs being a very contentious issue).
Why are amendments being considered?
When the legislation for the site blocking regime was first introduced, the Australian Government committed to reviewing its operation within 18 months. That review was delayed until early 2018, to provide further time for evidence of the effectiveness, or otherwise, of the regime to be collected and analysed.
In February 2018, the Department of Communications and the Arts released a consultation paper, seeking input from stakeholders primarily on the question of what amendments should be made to the regime (if any) to improve its operation. The Department stated that, in its view, stakeholders have found section 115A to be effective. The Department also pointed to evidence that copyright infringement levels in Australia, which are traditionally very high, have reduced since 2015. This comment was however qualified by the Department noting that it is not clear whether this reduction is a result of section 115A or the introduction of Netflix and other streaming services in the Australian market.
What is included in the Bill?
Stakeholder feedback to the Department’s review indicated that there are gaps in section 115A of the Act, which are limiting the effectiveness of the regime. Accordingly, the Government determined to introduce the Bill to address some of the concerns that had been raised.
The key changes proposed in the Bill are:
- the Bill will allow injunctions to be granted where the site has the “primary effect” of infringing or facilitating the infringement of copyright. In other words, it will no longer be necessary to establish that the primary purpose of the site is to achieve one of these outcomes. This will mean that the intent of the site operator will not be a necessary element, instead, the Federal Court may instead look simply at the evidence of the effect of the site. It is thought that this will bring a broader number of pirate sites within the scope of the regime whilst at the same time not capturing legitimate sites which may have a small amount of infringing content
- the scope of the regime will be expanded by the Bill to cover search engine providers, such as Google. An injunction obtained against a search engine provider would require that provider to take such steps as the Federal Court considers reasonable to not provide search results that refer to blocked sites (for Australia only, not globally). This change is to be made as there is concern that online searches may provide information on alternative ways to access blocked sites. The scope for these injunctions is however limited; these will only be available where an injunction is granted in relation to a CSP and only regarding search results for the site or sites that are to be blocked under that injunction. Also, providers may be exempted by declaration
- reflecting the ease with which sites can re-emerge under different domain names, URLs or IP addresses, often referred to as the “whack a mole” problem, the Bill will provide that where an injunction is granted, the relevant CSP or online search engine provider may agree with the copyright owner to extend the application of the injunction to block domain names, URLs and IP addresses that start (after the injunction is granted) to provide access to the same site initially the subject of the injunction.
Where to from here?
The Minister for Communications and the Arts, Senator Fifield has referred to the Bill as providing more powerful weapons to fight overseas pirate websites. The shadow communications minister, Michelle Rowland MP, has indicated that the Labor Party is supportive of the Bill, noting that the Bill is a response to the ongoing challenge of regulating online piracy. Given the negative impact that piracy has on Australia’s creative industries, effective tools to address this issue are welcome.