Analysis of the Copyright Amendment (Online Infringement) Bill 2015 (Cth)
On 26 March 2015 the Copyright Amendment (Online Infringement) Bill 2015 (Cth) (‘Online Infringement Bill’) was introduced to the House of Representatives. The proposed legislation follows several years of consultation with copyright holders, Internet service providers and consumer representatives with the aim of developing a strategy to reduce online copyright infringement.1 The Online Infringement Bill is the product of these consultations, and would require Internet service providers to block access to website that allegedly infringe or facilitate infringement of copyright.
There is nothing unusual about the introductory sections. These sections provide that the short title of the enactment will be the ‘Copyright Amendment (Online Infringement) Act 2015’,2 and that it will commence the day after it receives Royal Assent3 (that is, the day after it is signed by the Governor-General). Schedule 1 contains the substance of the legislation.
The New Section 115A
Schedule 1 of the Online Infringement Bill will insert a new section into the Copyright Act 1968 (Cth). Section 115A will be added after section 115, and be titled ‘Injunctions against carriage service providers providing access to online locations outside Australia’. The proposed section 115A(2) sets out the main purpose of the Bill: ‘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. The proposed section 115A(1) explains the process for granting this type of injunction, and the proposed section 115A(3) provides that the parties involved are a copyright holder and a carriage service provider, but that the operator of the online location may apply to join as a party to the proceedings.
The proposed section 115A(1) is straightforward. It provides 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 that the primary purpose of that online location is to infringe (or facilitate infringement of) copyright. Most or all carriage services providers who will be affected by this legislation will be standard Internet service providers (‘ISPs’) who supply end-users with Internet access. The targeted locations must be outside Australia, so the injunctions cannot be used to block access to domestic websites. The explanatory memorandum states that
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.4
The requirement that a location must infringe or facilitate infringement of copyright must be read with the additional requirement that this be the primary purpose of the location. This would not affect, for example, YouTube or Blogger.5
The proposed section 115A(2) states that ‘[t]he injunction is to require the carriage service provider to take reasonable steps to disable access to the online location.’ Such an injunction would compel the carriage service provider (or providers) to effectively block access to a website. The phrase ‘reasonable steps’ indicates an intention that the injunctions are not meant to be excessively burdensome for service providers. The explanatory memorandum states that ‘[t]his 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.’6
‘As the Court sees fit’ is an important phrase. The explanatory memorandum refers to Twentieth Century Fox Film Corporation v British Telecommunications Plc  EWHC 2714 (Ch) (26 October 2011), a case before the High Court of England and Wales in which Arnold J ‘issued detailed orders in relation to the technical means to be adopted by the [content service provider] to block access to the relevant website.’7 The order sought by the plaintiff studios (and granted in substantially 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).
Similar terms for injunctions can be expected in Australia. Although the efficacy of this approach is not known, 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.8
Parties and Service
The parties, according to the proposed section 115A(3), are straightforward. The parties will be the copyright holder seeking the injunction, the targeted carriage service provider (or providers), and the person who operates the relevant online location if that person applies to be joined to the proceedings. If a copyright holder makes an application under section 115A, they must give notice to the carriage service provider and 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
The matters that will be required to be taken into account when deciding whether to grant an injunction are listed in the proposed section 115A(5) is also straightforward. This provision is quite broad and is illustrative, as it directs the Court to consider ‘(i) any other remedies available under this Act; (j) any other matter prescribed by the regulations; and (k) any other relevant matter.’ Paragraph (k) might permit the Court to consider whether an injunction ordered in another jurisdiction was lifted for being ineffective, as happened in the Netherlands.9
Paragraph 115A(5)(a) refers to the ‘flagrancy’ of the infringement or facilitation of infringement — essentially how prominent or conspicuous it is. Paragraph 115A(5)(b) is targeted toward directories and indexes, but also websites that might offer categories for the infringing content. Paragraph 115A(5)(c) directs the Court to consider ‘whether the owner or operator … demonstrates a disregard for copyright generally’. Paragraph 115A(5)(d) requires the Court to consider whether disabling access to the online location has been ordered in another jurisdiction on the basis of copyright infringement.
Proposed paragraphs 115A(5)(e)–(h) are protective considerations that limit the damage that could be caused by granting an injunction, and require the Court to consider whether disabling access would be a proportionate response, the impact that 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 the copyright holder has complied with the service requirements. How these provisions operate will not be fully known until the initial cases are heard, although it is uncertain whether ISPs would actually challenge applications.
Rescinding and Varying Injunctions
The proposed subsections 115A(7)–(8) allow the Court to limit the duration of the injunction, rescind it, or vary its terms. An application to rescind or vary an injunction may be made by ‘any of the persons referred to in subsection (3)’, which may or may not include the site operator. This could be used by copyright holders to require different approaches to disabling access if, for example, new and more effective technology is developed.
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 compel service providers to comply where they would otherwise be reluctant.
Item 2 of the Online Infringement Bill will insert ‘or 115A’ into sections 119(a) and 120(1)(b) of the Copyright Act 1968 (Cth). This will extend the new right of action to seek a section 115A injunction to those who have an exclusive licence, being ‘a licence in writing … authorising the licensee, to the exclusion of all other persons, to an act that … the owner of the copyright would … have the exclusive right to do.’10 Thus, a person who is an exclusive licensee will be able to seek an injunction as if they were the copyright holder. In cases where a copyright holder and an exclusive licensee are concurrently eligible to seek an injunction, they will be required to apply together unless the Court permits otherwise.
Jurisdiction of Courts
Items 3–4 of the Online Infringement Bill will amend section 131A of the Copyright Act 1968 (Cth) to move 115A injunctions outside the jurisdiction of State and Territory Supreme Courts. Item 5 will amend section 131D to exclude section 115A injunctions from the jurisdiction of the Federal Circuit Court of Australia.
The Online Infringement Bill is brief and generally well-drafted. There are a few of questions that remain unanswered with regard to public interest considerations and the limitation of jurisdiction to the Federal Court. 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 specific manner of implementation itself.
Andrew Colley, ‘Online Anti-Piracy Talks to Resume in 2012’, The Australian Business Review (online), 6 October 2011 <https://www.theaustralian.com.au/business/technology/online-anti-piracy-talks-to-resume-in-2012/news-story/427985f9d37741828cb69e907334e766>. ↩
Copyright Amendment (Online Infringement) Bill 2015 (Cth) cl 1. ↩
Ibid cl 2. ↩
Explanatory Memorandum, Copyright Amendment (Online Infringement) Bill 2015 (Cth), 8. ↩
Ibid 9. ↩
Ibid citing Twentieth Century Fox Film Corporation v British Telecommunications Plc  EWHC 2714 (Ch) (26 October 2011) . ↩
Twentieth Century Fox Film Corporation v British Telecommunications Plc  EWHC 2714 (Ch) (26 October 2011) –. ↩
Samuel Gibbs, ‘Pirate Bay Ban Lifted in the Netherlands As Blocking Torrent Sites Ruled “Ineffective”’, The Guardian (online), 29 January 2014 <https://www.theguardian.com/technology/2014/jan/29/pirate-bay-ban-lifted-in-netherlands-as-blocking-torrent-sites-ruled-ineffective>. ↩
Copyright Act 1968 (Cth) s 10 (definition of ‘exclusive licence’). ↩