Australia’s Copyright Act 1968 (Act) has recently been amended to allow owners of copyright to seek, from the Federal Court of Australia, an injunction requiring Carriage Service Providers (CSPs) to block access to any ‘online location’ operated outside of Australia if its ‘primary purpose’ is to ‘infringe, or facilitate an infringement’ of copyright. The relevant provision in the Act, s115A, can be accessed here.
The term ‘online location’ (which includes websites) is intentionally broad to accommodate existing and future technologies. The reference to CSPs is also broad and can include organisations that provide access to the internet, including Internet Service Providers, and Virtual Private Networks such as Netflix.
Whilst the provision does not require a copyright owner to establish the CSPs’ liability for copyright infringement or authorisation of copyright infringement (providing a ‘no-fault’ remedy), the injunction is not ‘as of right’. A court must be satisfied that the online location infringes or facilitates infringement of copyright and that this infringing activity is the ‘primary purpose’ of the online location. This ‘primary purpose’ test excludes online locations that are mainly operated for a legitimate purpose but which contain a small percentage of infringing material (such as YouTube). The provision is therefore targeting websites providing bit torrent files or websites providing links to, or hosting, infringing material.
Before granting the injunction, the court will also need to consider a number of factors set out in s115A(5) including:
- the flagrancy of the infringement or its facilitation;
- whether disabling access to the online location is a proportionate response in the circumstances;
- whether the operator of the online location demonstrates a disregard for copyright generally;
- the impact on any person likely to be affected by the grant of the injunction; and
- whether it is in the public interest to disable access to the online location.
The injunction will require the CSP to take “reasonable steps to disable access to the online location”. This can include blocking subscribers from accessing an overseas operated website that infringes or facilitates an infringement of copyright.
As Australia waits for its first ‘test’ case to define the strength and scope of this provision, it is important to note that there are also other avenues available to copyright owners that should be considered prior to seeking an injunction under s115A. This is best discussed with your legal representative and can include sending a ‘cease and desist’ letter, seeking a ‘take down’ notice under the Act or accessing internal IP infringement complaint procedures with the Registrar of a domain name or the web host.
For further information on this new provision or any related issues, please do not hesitate to contact Khajaque Kortian, Principal.
Authors: Jacqueline Chelebian, Solicitor & Khajaque Kortian, Principal.