Copyright Amendment (Online Infringement) Bill 2015: Piracy In The Spotlight Again
Monday 30 March 2015 @ 11.57 a.m. | IP & Media
Last week, the Federal Government introduced the Copyright Amendment (Online Infringement) Bill 2015 into the House of Representatives. According to the Explanatory Memorandum, the Bill is designed to introduce a prescriptive scheme to reduce online copyright infringement. The Bill would insert a new section 115A into the Copyright Act 1968 (Cth) that would allow the Federal Court to grant an injunction requiring a carriage service provider (e.g., an internet service provider or ISP) to block an infringing website.
The New Scheme
The change would allow copyright owners to apply directly to the Federal Court for an injunction against a website that is hosted overseas, without needing to establish whether the carriage service provider has authorised the infringement.
The Court would be required to take a number of factors into account when considering whether to grant the injunction, including:
- the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement;
- whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;
- whether the owner or operator of the online location demonstrates a disregard for copyright generally;
- whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
- whether disabling access to the online location is a proportionate response in the circumstances;
- the impact on any person, or class of persons, likely to be affected by the grant of the injunction; and
- whether it is in the public interest to disable access to the online location.
Costs
The Explanatory Memorandum states that the scheme is meant to cost $130,825 on an annual basis. It is not clear how this would be applied, raising fears that the scheme will increase the cost of internet to consumers.
Further Criticisms
An article by Ben Grubb of the Sydney Morning Herald noted that there are some serious concerns in relation to the legislation. Notably, the bill does not have either a cap on the number of websites that can be blocked in a single injunction, nor does it stipulate a method for how the sites should be blocked. Instead, rights holders must take “reasonable steps to disable access”. He commented:
“Critics of the regime are likely to argue that having no cap on the scheme could result in what happened in India, where a number of legitimate websites were blocked, including Google services, when a judge agreed to block some 472 websites…
How sites are blocked is [also] important, as some of the cheaper blocking methods can result in collateral damage. Australia's corporate watchdog ASIC, for instance, inadvertently blocked access to more than 250,000 innocuous websites when trying to block one believed to be defrauding Australians.”
He also pointed out that there is no provision enabling consumers to be represented at any stage in the process, with the ACCC and the ACMA being the only people to be able to apply to revoke a block apart from the rights holder, carriage service provider or the people behind the affected site.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
Copyright Amendment (Online Infringement) Bill 2015 & Explanatory Memorandum - available from TimeBase's LawOne service
