The Commonwealth Government has introduced into Parliament the Copyright Amendment (Online Infringement) Bill 2015. This bill will implement the second (or third) of the Government’s online infringement proposals.
The Bill would insert a new s 115A into the Act. Under s 115A, a copyright owner would have a right to apply to the Federal Court for an injunction against a carriage service provider requiring the carriage service provider to take reasonable steps to block access to on online location outside Australia the primary purpose of which is to infringe copyright (whether in Australia or not).
The EM is at pains to stress that the website must be outside Australia – otherwise the copyright owner could sue directly – and its primary purpose must be copyright infringement. Thus, the EM says services like Youtube, iTunes and so on would not be exposed to the risk of injunction.
The bill does not prescribe what steps would be reasonable (to attempt) to block access, but presumably guidance may be sought from English decisions on this issue.
In deciding whether or not to grant the injunction, the Court will be directed to take into account a range of factors including, in particular, the flagrancy of the infringement and the proportionality of blocking access to the extent of the infringement.
Provision is also made for the person operating the website to be, or become, a party to the proceeding and to apply after an injunction has been granted for it to be rescinded or varied.
The carriage service provider will be liable for costs only if it enters an appearance and takes part in the proceedings. The bill does not make provision for whom should bear the costs of implementing and maintaining the injunction.
The injunctions provided by the English courts include a mechanism for copyright holders to “update” the webiste addresses so that, if the website operator changes the URL, it is an administrative exercise to notify the ISP. The Bill does not appear specifically to contemplate this, and it is unclear whether the Federal Court would, or should, adopt such a mechanism.
In addition to discussion of blocking methods, the Cartier ruling in England includes an interesting discussion of the costs of such applications and also the costs incurred by the ISPs in implementing the injunctions. Apparently, after the initial cases, such an application typically cost the copyright owners around £14,000 with a further fee of around £3,600 per year per website for monitoring. The costs to ISPs reported by the judge ranged from a “low four figure sum per month” to a “low six figure sum a year”.
The Cartier case concerned websites infringing trade marks, not copyright. One might wonder whether the Australian law should also extend to trade marks?
The Senate has referred the Bill to its Legal and Constitutional Affairs committee for review. There is plainly not much to discuss about the bill, as the committee is due to report back by 13 May 2015 and you must make your submissions, if any, by 16 April 2015.