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Wednesday, June 17, 2015

Senate Committee recommends anti-piracy injunctions

By Jonathan Adamopoulos, Senior Associate

In a report released last week, the Senate's Legal and Constitutional Affairs Legislation Committee has recommended that the Copyright Amendment (Online Infringement) Bill 2015 (Cth) be enacted into law. The report was released following a period of public consultation with key industry groups and other stakeholders.

As we reported in our Focus recently, the Bill will allow copyright owners to apply for an injunction requiring internet service providers (ISPs) to take steps to take reasonable steps to block piracy websites (or 'online locations') from their users.

Courts to have more discretion

One of the concerns raised in the consultation process was in relation to the mandatory list of factors that a court would be required to take into account in determining whether or not to grant an injunction. Those factors include:
  • the flagrancy of the copyright infringement (or the facilitation of the infringement);
  • whether the owner/operator of the online location/website demonstrates a disregard for copyright generally;
  • whether the online location/website has been disabled in other jurisdictions for copyright infringement; and
  • whether disabling access to the online location/website is a proportionate response in the circumstances.
The Bill currently requires the court to consider 11 factors before making a determination. The Senate Committee considered that this requirement was too prescriptive. In a move that would bring the Bill closer to Singapore's approach, it has recommended that courts be given the flexibility to consider which of the factors are relevant in each individual case.

Primary purpose test remains

Under the Bill, injunctions will only be available where the primary purpose of the online location is to infringe or facilitate copyright infringement. While the Senate Committee acknowledged that this is a high threshold, it considered that the test will avoid the inadvertent blocking of websites or online locations which may have a legitimate purpose. It also took the view that it will be 'unambiguously apparent' whether a website's purpose is to infringe or facilitate the infringement of copyright.  Accordingly, the Senate Committee has not suggested any changes to the primary purpose test.

The primary purpose test will capture websites and other online locations that are notorious for piracy. The Senate Committee heard that it is unlikely that the Bill would capture virtual private networks (VPNs) which, on the one hand, provide users with extra security when they use the internet while, on the other, have become known to be associated with online copyright infringement. It has suggested that the Explanatory Memorandum to the Bill clarify the position on whether VPNs would be affected.

Method of disabling access to be determined on case-by-case basis

The Bill does not specify the particular 'reasonable steps' that will be required by ISPs to disable access to websites. The rationale behind this approach is to allow courts to frame injunctive orders around the circumstances of each case. It is expected that the court will also develop a body of case law about such measures over time, similar to the approach which has been taken in jurisdictions such as the United Kingdom. The Senate Committee has suggested that taking reasonable steps to block a website may include requiring a landing page informing users attempting to visit the site that it has been blocked by a court order.

Measures to be reviewed in two years

An issue which featured in submissions and public hearings is the effectiveness of website-blocking as a means to preventing piracy. Some of the submissions received referred to measures which users may take to evade website-blocking, including the use of VPNs. Other submissions preferred alternative non-legislative mechanisms for addressing online piracy regarding the availability of content in Australia, an issue raised in the dissenting report by the Australian Greens. The Senate Committee has recommended that the measures in the Bill be formally reviewed two years after the law comes into effect.

What's next?

With the Bill being given bipartisan support, it is expected that it will pass both of the Houses of Parliament and be enacted shortly.

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