Amendments to the Copyright Act 1968 (Cth), allowing rights holders to seek an injunction requiring an ISP to block foreign websites whose “primary purpose” is piracy, moved a step closer to becoming law in Australia after the Senate Standing Committee recommended that the Copyright Amendment (Online Infringement) Bill 2015 pass (with minor amendments).
Both the Coalition and Labor Committee members supported the Bill, with the Australian Greens dissenting. The Bill is scheduled for further debate in Parliament this week. A copy of the Report is available here.
Recap of proposed Bill
The substantive amendments to the Copyright Act would be contained in new section 115A.
In recognition of the practical difficulties of taking direct action against foreign entities, the proposed amendments create a ‘no-fault’ remedy against ISPs.
The Bill provides that a copyright owner may apply to the Federal Court of Australia for an injunction requiring an ISP (‘carriage service provider’ or CSP under the Bill) to take reasonable steps to block access to ‘online locations’ whose primary purpose is engaging in or facilitating copyright infringement (subsection 115A(1)). Exclusive licensees are given the same rights as copyright owners.
In granting such an injunction, the Court must be satisfied:
- the CSP provides access to an ‘online location’ outside Australia;
- the online location infringes, or facilitates infringement of, the applicant’s copyright; and
- the primary purpose of the online location is infringement, or facilitating infringement, (whether or not in Australia).
Proposed subsection 115A(5) sets out criteria that the Court ‘is to’ (but note recommendation 1 discussed below) take into account in deciding whether or not to grant an injunction, including:
- the flagrancy of the infringement (or facilitation);
- if the online location makes available or contains directories, indexes or categories of the means to infringe (or facilitate infringement);
- whether the owner or operator of the online location ‘demonstrates a disregard for copyright generally’;
- whether courts in other countries have made similar blocking orders;
- whether disabling access is a proportionate response in the circumstances;
- the likely impact of granting the injunction on third parties;
- whether it is in the public interest to disable access;
- whether the copyright owner has give the requisite notice under subsection 115A(4) (see below); and
- any other remedies available under the Act, or its regulations, ‘or any other relevant matter’.
Proposed subsection 115A(4) concerns notification obligations on copyright owners that an application has been made, and when such notification may be dispensed with.
Other proposed provisions empower the Court to limit the duration of an injunction, or (upon application of the copyright owner, CSP or online location owner) rescind or vary an injunction.
Finally, subsection 115A(9) provides that the CSP will not be liable for any costs of the court proceedings unless it chooses to appear and take part in the proceedings.
Senate Committee Recommendations
The Senate Committee on Legal and Constitutional Affairs made 5 recommendations, following a process of consultation with stakeholders, and a public hearing.
Recommendation 1 – making factors that the Court must take into account discretionary
The Senate Committee recommended that the matters listed in subsection 115A(5) ought to be discretionary, and not prescriptive. The Committee took the view that the Court should be able to exercise its discretion in identifying ‘the salient features of each matter on a case-by-case basis’. Consequently, the Committee recommended that the word ‘may’ replace the words ‘is to’.
Recommendation 2 – inclusion of a ‘landing page’ as an option in blocking a foreign website
The Senate Committee recommended that the Explanatory Memorandum to the Bill be amended to specify that ‘reasonable steps to disable access to an online location’ may include a requirement to post a landing page at the blocked online location, specifying that the relevant online location has been blocked by court order, and giving details of that order.
Recommendation 3 – formal review of effectiveness of legislation within 2 years
The Senate Committee noted that a formal cost-benefit analysis was not commissioned. Consequently, the Committee had no information before it comparing the expected benefits to rights holders against the potential costs to third parties. In light of this, the Committee recommended that the government conduct a formal review of the effectiveness of the Bill within 2 years of its enactment.
The Committee also suggested that the issue of specifically targeting ISPs with international (wholesale) connectivity be examined as part of the review process.
Recommendation 4 – amendments to Explanatory Memorandum to provide greater clarity and guidance on the issue of ISP costs and liability
The Committee noted that, on the question of costs and implementing orders, the Bill preserves the discretion of the Court to tailor its findings and any resulting order as it see fit. In the ordinary course, a non-party to proceedings would not normally be liable for costs, in the absence of malice. As such, the Committee questioned the utility of proposed subsection 115A(9) which might only confuse the question of costs.
The Committee also ‘urges’ the government to clarify its position regarding the attribution of the costs of complying with orders where injunctive relief is granted. It further acknowledged the concerns of ISPs about defraying the costs of implementing orders.
The Committee, however, did not recommend any legislative changes in light of the above, but instead recommended that the Explanatory Memorandum be amended ‘to provide greater clarity and guidance on the issue of service provider costs and liability subsequent to the service provider’s compliance with court orders’ made under the proposed section.
Recommendation 5 – the Bill be passed
The final recommendation is that, subject to the other recommendations, the Bill be passed.
Issues the Senate Committee did not make any recommendations about
The following are matters that the Senate Committee noted, but which were not the subject of formal recommendations.
The Committee acknowledged the evidence provided by the Department of Communication to the effect that under the proposed legislation, particular online locations (such as sub-domains) or particular technology (such as VPN) would neither be specifically targeted by, nor be immune from, an injunction.
The Department submitted that it would be a question of fact whether or not the particular online location or technology had the requisite ‘primary purpose’. The Committee noted that VPNs were unlikely to meet the ‘primary purpose’ test, but would be ‘reassured’ if the government clarified the status of VPNs, without making any specific recommendations in that regard.
Likewise, whilst noting that the term ‘facilitate’ should have its ordinary meaning, and will be informed by the matters in subsection 115A(5), the Committee ‘urges’ the government to clarify the meaning of ‘facilitate’.
The Committee’s overarching view is that, by providing the Court with a broad discretion, the court will be able to target discrete issues, as well as develop a general body of jurisprudence. The Court is empowered to draft orders in such as way as to make them effective, whilst balancing unintended consequences such as over-blocking.
The Committee noted the suggestion from ISPs that they be allowed a level of discretion to determine the most appropriate blocking method. However, the Committee concluded that this would best be achieved in consultation with rights holders, but in any event will be a matter for the Court’s discretion, on a case by case basis.
Submissions were also received as to whether the legislation would be of limited utility if not imposed across multiple ISPs. The Committee noted that this practice was already commonplace but encouraged the government to clarify in the Explanatory Committee that the practice would continue.
The Committee noted that safe harbours are ‘among a range of options that may be considered at a later time’. It further noted that the Bill does not relate to authorisation of infringement by any domestic entity, nor does the application of authorisation liability fall within the scope of the Bill.
The Committee acknowledged that the Court may require expert technical advice, both to ensure the effectiveness of any injunction and also to protect other parties’ rights.
The Committee stated that it ‘would be reassured’ if the Explanatory Memorandum clarified the ability of the Court to access independent technical expertise, where required, by noting the Court’s inherent right to appoint a court expert under the existing Court rules.
The Bill, and the Senate Committee’s recommendation that the Bill pass, will be welcomed by rights holders. For ISPs, and some industry groups, uncertainty remains about how key parts of the legislative provisions will work in practice and whether unintended consequences (such as over-blocking or high costs of compliance) may result.
Assuming that the legislation passes, which now seems inevitable, those with an interest in the area will be closely watching for the first Court rulings under the new provisions, and how key terms in the legislation will be interpreted and applied.
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Text © Kerin Forstmanis, 2015
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