Earlier this year, we reported on the introduction of site-blocking provisions in Australia.
Section 115A of the Copyright Act 1968 allows copyright owners to seek, from the Federal Court, an injunction requiring internet service providers (ISPs) to block access to any ‘online location’ (such as websites) operated outside of Australia if its ‘primary purpose’ is to ‘infringe, or facilitate an infringement’ of copyright in Australia.
Our summary of Australia’s site-blocking provisions can be accessed here.
Whilst Australia awaits its first test case, it appears that there is already movement by rights holders to take advantage of the new provisions.
A recent example involves Simonds Homes which, through its lawyers, wrote a letter to an ISP demanding that it block a website (www.chmconstructions.com) pursuant to those provisions.
The letter, a copy of which was cited by ABC News and can be accessed here, alleges that the website is conducting ‘corporate identity theft’ and purports to have a ‘licence or other relationship’ with Simonds Homes. The letter also alleges that the website “is presently infringing upon Simonds’ rights pursuant to intellectual property law and the Copyright Act 1968 (Cth)”. However, the nature of those rights are not defined, particularly those with respect to copyright.
We note that, at the time of writing, the ISP has not blocked the website. Whilst it can do so voluntarily, it can only be ‘forced’ to block the website if ordered to do so by a court. If Simonds Homes were to seek an injunction requiring the ISP to block the website, a court would need to be satisfied that:
- a) the website is located outside of Australia;
- b) the website infringes or facilitates the infringement of copyright; and
- c) the ‘primary purpose’ of the online location is to infringe or facilitate the infringement of copyright.
On the assumption that (a) and (b) above are satisfied, an uncertainty arises in respect of (c). It is unclear, whether the provisions operate in circumstances where a website, which promotes engineering and construction services using copyright material owned by Simonds Homes, can be said to have the ‘primary purpose’ of infringing or facilitating the infringement of copyright.
Whilst there is no case law as to what constitutes ‘primary purpose’, the Revised Explanatory Memorandum states that section 115A “…would only capture online locations that have the primary purpose of infringing copyright or facilitating the infringement of copyright. This excludes online locations that are mainly operated for a legitimate purpose, but may contain a small percentage of infringing content”.
If Simonds Homes commences court proceedings, it will be the first test case for Australia. All eyes are now on Simonds Homes.
In the meantime, it appears that ISPs may receive an influx of similar letters from copyright owners demanding that particular websites be blocked. It will be interesting to see whether those ISPs surrender to the demands to avoid the potential costs (and publicity) associated with an action under section 115A which may mean websites, not intended to be encompassed by the new provisions, are blocked.
Authors: Jacqueline Chelebian, Solicitor & John Afaras, Principal.