On 26 March the Commonwealth Attorney-General introduced the Copyright Amendment (Online Infringement) Bill 2015 (Cth) (‘Online Infringement Bill’). This legislation comes after years of consultation with copyright holders, Internet service providers and consumers with the aim of developing a strategy to reduce online copyright infringement. This is the time that actual plans are materialising, although discussions have been ongoing since at least 2011.

Two of the ideas floated in the Attorney-General’s Department’s 2014 ‘Online Copyright Infringement’ discussion paper were a graduated response (three strikes) scheme, and requiring Internet service providers to block access to allegedly infringing websites. The Attorney-General directed the Internet service provider industry to develop an industry code for handling allegations of infringement by Internet users.

The Online Infringement Bill deals with the second part of the strategy: ‘disabling access’ to ‘online locations’. The good news is that it’s relatively short, at just five pages long. The Senate Legal and Constitutional Affairs Legislation Committee is currently conducting an inquiry into the bill, and is calling for submissions from interested individuals and groups. Submissions close 16 April 2015.

The following is an analysis of the legislation.

There is nothing particularly unusual about the introductory sections. They are standard introductions: the short (common) title of the enactment will be the ‘Copyright Amendment (Online Infringement) Act 2015’. The commencement will be the day after it receives royal assent — it enters into force the day after the Governor-General signs it. The substance of the legislation is set out in schedule 1.

The new section 115A

Schedule 1 inserts a new section into the Copyright Act 1968 (Cth). Section 115A will be added after section 115, and will be titled ‘Injunctions against carriage service providers providing access to online locations outside Australia’.

Section 115A(2) sets out the main purpose of this act: ‘to require [a] carriage service provider to take reasonable steps to disable access to [an] online location’ that is allegedly infringing copyright or facilitating copyright infringement. Section 115A(1) explains the process for granting this sort of injunction, and section 115A(3) provides that the parties involved are a copyright holder and a carriage service provider, but the operator of the online location may apply to join as a party to the proceedings.

Section 115A(1) is relatively straightforward. It states that the Federal Court may grant an injunction of the kind described if it is satisfied that a carriage service provider provides access to an online location outside Australia that infringes or facilitates the infringement of copyright and the primary purpose of that online location is to infringe (or facilitate infringement of) copyright.

‘Carriage service provider’

For present purposes, it is safe to assume that most or all carriage service providers who are the target of this legislation will be garden-variety Internet service providers (ISPs): those who supply end-users with Internet access. If you’re interested, however, you can follow the legislative thread to define ‘carriage service provider’. Start with the definition of ‘carriage service provider’ in section 10 of the Copyright Act 1968 and work from there — have fun!

‘Provides access to an online location outside Australia’

This is not a difficult requirement to meet: most (if not all) ISPs will provide access to online locations outside Australia, and no Australian ISPs seem to currently be blocking websites on copyright grounds. What is interesting however is that it specifies that the location must be outside Australia: this will not be used to block access to domestic-based websites. The reason for this is given in the explanatory memorandum:

Copyright owners have existing avenues to take direct action against an online location operated within Australia, but face difficulties in enforcing their rights against an online location operated outside the jurisdiction.

This requirement must be read with the requirement that infringement or facilitating infringement is the primary purpose of the website (looked at below). It isn’t difficult to meet: a website will generally be infringing if the copyright owner has not given permission (that is, not granted a licence) to use content that appears on it, or can be accessed through it in some way. Fair dealing exceptions to copyright may apply, in which case the operator of the site would want to argue that out in court and establish that it is lawfully using (or otherwise facilitating access to) the content.

‘Primary purpose’

The primary purpose of the online location must be ‘to infringe, or to facilitate infringement, of copyright.’ It may or may not have other purposes. Interestingly, from the wording, there is an implication that copyright infringement may be one of many purposes, so long as it is not the primary purpose. This may be to alleviate the effects on websites with multiple ‘legitimate’ purposes, particularly if the infringing aspect is not an infringement under, for example, American law. This might apply if the jurisdiction the online location was operating under had a shorter copyright term than Australia (eg life+50 years rather than life+70 years) but the purpose was to provide access to a wide range of public domain materials (materials where the copyright has expired).

The injunction

Subsection (2) states that ‘The injunction is to require the carriage service provider to take reasonable steps to disable access to the online location.’ The injunction will compel the carriage service provider (or multiple providers, as the case may be) to effectively block access a website. ‘Reasonable steps’ is not defined explicitly or with reference to any guiding criteria, but it is clear this is not meant to overly burden service providers.

The explanatory memorandum states ‘This may include blocking its subscribers from accessing a website operated overseas that facilitates copyright infringement in any such a manner as the Court sees fit.’ As the court sees fit is perhaps the most significant phrase here. The explanatory memorandum refers to the High Court of England and Wales decision Twentieth Century Fox Film Corporation v British Telecommunications Plc [2011] EWHC 2714 (Ch) (26 October 2011), where Arnold J ‘issued detailed orders in relation to the technical means to be adopted by the CSP to block access to the relevant website.’ The order sought by the plaintiff studios (and granted ‘substantially in the form sought’) was as follows:

  1. The Respondent shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:        (i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.        (ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.
  2. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.
  3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses).

We can expect similar terms for injunctions under the Australian legislation.

Although the efficacy of this approach may be questioned, the words of Arnold J are likely to have judicial impact in Australia:

It is common ground that … it would be possible for … subscribers to circumvent the blocking required by the order. There are at least two, and possibly more, technical measures which users could adopt to achieve this. … Mr Hutty’s opinion in summary is that users of Newzbin2 would be able to, and would, circumvent the blocking. Mr Clark’s opinion in summary is that, while some users would do this, others would not. … I am not persuaded that it follows that the order would be ineffective, for the following reasons.

First, it seems likely that circumvention will require many users to acquire additional expertise beyond that they presently possess.

Secondly, evidence filed by the Studios suggests that circumvention measures are likely to lead to slower performance and lower quality downloads …

Thirdly, it is important not to overlook the question of economics. … If, in addition to paying for (a) a Usenet service and (b) Newzbin2, the users have to pay for (c) an additional service for circumvention purposes, then the cost differential between using Newzbin2 and using a lawful service (such as a DVD rental service) will narrow still further.

Fourthly … the Studios’ evidence is that when a similar kind of order was made by an Italian court blocking access to the Pirate Bay, use of the site appears to have been markedly reduced.

Finally, I agree with counsel for the Studios that the order would be justified even if it only prevented access to Newzbin2 by a minority of users.

Parties and service

The parties according subsection (3) are straightforward: they are the copyright holder seeking the injunction, the targeted carriage service provider, and the person who operates the ‘online location’ to be blocked if that person applies to be joined to the proceedings (but otherwise they are not included).

‘Service’ under subsection (4) refers to the process of serving a legal document regarding litigation on another party. If a copyright holder makes an application for an injunction under section 115A, they must give notice to the carriage service provider as well as the person who operates the online location. The Federal Court may waive the requirement to notify the operator of the online location if, despite reasonable efforts, the owner of the copyright is unable to determine the identity or address of the operator or to send the notice to them.

Matters to be taken into account

Each matter under subsection (5) that is to be taken into account when deciding whether to grant an injunction is fairly obvious and expected. Subsection (5) is quite broad, and primarily illustrative as it directs the court to consider ‘(i) any other remedies available under this Act; (j) any other matter prescribed by the regulations; (k) any other relevant matter.’

Paragraph (a) refers to the ‘flagrancy’ of the infringement/facilitation — essentially how conspicuous it is. Paragraph (b) is targeted toward directories and indexes, but also sites that might offer categories for the infringing content. Paragraph (c) stands out as a little unusual, but quite clear: ‘whether the owner or operator … demonstrates a disregard for copyright generally’. Paragraph (d) directs the Court to consider whether disabling access has been ordered in another jurisdiction on the basis of copyright infringement. Under paragraph (k), the court might be able to consider whether the block was lifted for being allegedly ineffective, as in the Netherlands.

Paragraphs (e)–(h) are protective considerations to limit the damage of a granting an injunction, requiring the Court to consider whether disabling access would be a proportionate response, the impact an injunction would have on a person or class of persons likely to be affected, whether disabling access is in the public interest, and whether copyright holder complied with the service requirements of subsection (4). We will have to wait for several applications to be made to see how these provisions operate; although it is unclear whether ISPs would in fact challenge applications.

Rescinding and varying injunctions

Subsections (7)–(8) allow the court to limit the the duration of the injunction, rescind (cancel) it or vary (amend) its terms. An application to rescind or vary may be made by ‘any of the persons referred to in subsection (3)’ and implies that this includes the site operator, regardless of whether they are joined in the proceedings. This may be used to alleviate the burden on a carriage service provider, or could be used by the copyright holders to require a different approach to disabling access (if, for example, new and more effective technology was developed).

Costs

As long as a carriage service provider does not enter an appearance or take part in the proceedings — if they simply let the application go through — they will not be required to pay any costs. Costs for copyright holders ought generally to be negligible given these applications are more a formality to get service providers to comply where they would otherwise be reluctant.

Exclusive licensees

Item 2 of the amendments inserts ‘or 115A’ into paragraphs 119(a) and 120(1)(b) of the Copyright Act. In regard to paragraph 119(a) this extends the new right of action to seek a ‘115A injunction’ to those who have exclusive licences. An exclusive licence is (according to section 10) ‘a licence in writing … authorizing the licensee, to the exclusion of all other persons, to do an act that … the owner of the copyright would … have the exclusive right to do.’

Thus, a person who is an exclusive licensee will be able seek an injunction as if they were the copyright holder. The amendment to paragraph 120(1)(b) is not particularly interesting: it merely means that if a copyright holder and an exclusive licensee are both able to seek an injunction, they must do it together unless the court permits otherwise.

Jurisdiction of courts

Items 3–4 amend section 131A of the Copyright Act to move 115A injunctions outside the jurisdiction of State and Territory Supreme Courts. Item 5 amends section 131D to exclude 115A injunctions from the jurisdiction of the Federal Circuit Court of Australia (FCCA). The FCCA is the lowest-tier court in the Federal Court system, and a lot of the simpler cases are heard by it to take pressure off the other federal courts (chiefly the Federal Court of Australia and Family Court of Australia). There is no explanation provided in the explanatory memorandum for this narrow jurisdiction, but it is likely to be of no consequence.

Conclusion

This legislation is brief and generally well-drafted. There are a couple of questions that remain outstanding with regard to the public interest considerations and the narrowed jurisdiction, but it will not take long for the Federal Court to provide judicial consideration of the legislation as no doubt copyright holders and exclusive licensees, who have for a long time wanted this course of action, will quickly start to use it. The debate surrounding legislation of this nature will continue to be about the efficacy and proportionality of the approach, not the implementation.