23 June 2015

Website blocking legislation passed in Senate

This article was written by Cate Nagy.

On 22 June 2015, the Senate passed controversial new reforms to the Copyright Act, empowering the Federal Court of Australia to issue website blocking injunctions against ISPs.

Initially canvassed by the Government in its July 2014 Online Copyright Infringement Discussion Paper, the new website blocking power is aimed at tackling online copyright infringement. Following on the heels of similar legislation in the European Union and Singapore, the new section 115A of the Copyright Act confers power upon the Federal Court of Australia, on an application by an owner of copyright, to order a “carriage service provider” to take “reasonable steps” to disable access to an “online location”. Before making such an order, the Court must be satisfied that:

  • the CSP provides access to an online location outside Australia;
  • the online location infringes or facilitates the infringement of copyright; and
  • the “primary purpose” of the online location is to infringe or facilitate the infringement of copyright.

Significantly, an injunction can only be granted in relation to “online locations” that are outside Australia. Copyright owners must pursue existing remedies under the Copyright Act in relation to local websites.

The legislation steers away from conventional language such as “website”, with the Government adopting the technologically neutral term of “online location”. This is intended to embrace current and future technologies that facilitate the infringement of copyright. Similarly, the term “primary purpose” is not defined for the purpose of section 115A. The Explanatory Memorandum states that the “primary purpose” threshold to be applied is high, and should operate to exclude websites that are operated primarily for a legitimate purpose, even if those websites contain a small percentage of infringing content (for example, YouTube). The Explanatory Memorandum also indicates that VPNs (virtual private networks) that are promoted and used for legitimate purposes, or used to access copyright content licensed for distribution in a foreign geographic market (but not Australia), are not the target of the legislation.

The Court’s power to grant an injunction under section 115A is discretionary, although pursuant to the legislation the Court may take into account particular factors in deciding whether to grant the injunction. These factors include flagrancy, the proportionate nature of an injunction-based response in the circumstances, the impact on persons, or classes of persons, likely to be affected by the grant of an injunction and the public interest.

Parties to any action brought under the new section 115A are the copyright owner, the CSP and the website operator (if the website operator applies to be joined as a party). The copyright owner must notify the CSP and the online location of the filing of any application, although the Court may dispense with this notice requirement in certain circumstances, such as if the identity of the operator cannot be determined or notices cannot be sent.

Despite general bipartisan support for the legislation, its enactment has attracted some criticism, with concerns regarding the draconian and ex-parte nature of such relief and its potential to impact non-infringing websites and businesses. Concerns have been raised that injunctions may result in “over-blocking”, with non-infringing websites blocked in error and that blocking injunctions are likely to be ineffective in reducing copyright infringement, due to ISP-level blocking being relatively easy to evade (the so-called “whack-a-mole” effect).

From the perspective of ISPs, concerns have also been raised as to the costs of implementing website blocking injunctions. Section 115A contemplates the issue of injunctions against ISPs in circumstances where the ISP is not alleged to have committed, authorised or been in any way a party to any infringement of copyright, including in circumstances where the ISP has no actual or constructive knowledge of the use of its services for such a purpose. It is clear from the Explanatory Memorandum that the Court may make appropriate orders as to the costs of implementation. It can be anticipated that ISPs will seek to recover those costs from copyright owners in the context of any proceedings under section 115A.

While the enactment of the new section 115A represents a significant step for copyright owners in combating online piracy, the Government has recognised that there are other factors which play into the complex issue of online copyright infringement, including the availability of timely and affordable copyright content in Australia. The Government has committed to reviewing the effectiveness of the new website blocking injunction power 18 months after its commencement.

In the meantime, negotiations between copyright owners and ISPs on the proposed Copyright Notice Scheme Industry Code, seen as a further measure to reduce online copyright infringement, are continuing, with an outcome expected later this year.

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