The Department of Communications and the Arts in Australia is seeking views from stakeholders on the questions put forward in published paper. The Department welcomes single, consolidated submissions from organisations or parties, capturing all views on the Copyright Amendment (Online Infringement) Act 2015 (Online Infringement Amendment).
The Online Infringement Amendment provides a targeted mechanism to help reduce online copyright infringement. The mechanism is intended to disrupt large-scale online copyright infringement by websites that operate outside Australia and distribute (or facilitate the distribution of) infringing material to Australian consumers. It enables copyright owners to apply to the Federal Court of Australia to block access to an online location meeting certain conditions. The location must be operated outside Australia and have the primary purpose of infringing (or facilitating infringement of) copyright content. After considering several factors, the Federal Court may grant an injunction to require a carriage service provider (CSP) to take reasonable steps to disable access to such an online location. The factors help to target only those online locations that flagrantly disregard the rights of copyright owners by facilitating access to infringing copyright content. The factors the Federal Court considers are:
- the flagrancy of infringement or its facilitation
- whether disabling access is a proportionate response
- the impact of the injunction on any person likely to be affected by the injunction
- whether it is in the public interest to disable access.
The Productivity Commission had noted a variety of stakeholder experiences with blocking websites. One stakeholder pointed to the UK experience with blocking orders as an example of successful blocking. However, some concerns were raised that some parts of the scheme were not sufficiently defined, creating uncertain impacts (for example, the lack of statutory definitions for ‘primary purpose’ of an online location and whether infringement is ‘flagrant’).
There were also concerns that website blocking might be ineffective where the block was avoided by changing the online location. Other concerns already raised included the potential impact on access to legal content and bypassing of blocks implemented by carriage service providers (CSPs).
Case law and survey data suggests the Online Infringement Amendment has enabled copyright owners to work with CSPs to reduce large-scale online copyright infringement. So far, it appears that copyright owners and CSPs find the current arrangement acceptable, clear and effective. At the time of writing this paper, there have been four applications for injunctions through the Federal Court, with more applications expected to reach the Federal Court shortly.
Early cases have established some initial precedents for these arrangements. One precedent establishes the use of a landing page to inform internet users of a court order and the costs of a CSP complying with a court order. Either a copyright owner or a CSP can establish a landing page. If a CSP wishes to avoid the cost of its own landing page, it can redirect customers to one that the copyright owner would provide.
Another precedent allocates responsibility for compliance costs. Cases to date have required copyright owners to pay all or a significant proportion of compliance costs. They have also calculated costs proportionate to the number of domain names. The Department is aware that other factors – such as the increasing availability of television, music and film streaming services and of subscription gaming services – may also contribute to falling levels of copyright infringement.