24 June, 2015
In Brief
The Copyright Amendment (Online Infringement) Bill 2015 has now been passed.
Summary
The Copyright Amendment (Online Infringement) Bill 2015 (Bill) was last night passed by the Senate, having passed through the House of Representatives less than two weeks ago.
The Bill introduces a new s 115A into the Copyright Act which allows rights holders to seek 'blocking injunctions' against ISPs in the Federal Court. The new injunctions will require an ISP to block access to overseas websites where the rights holder can establish to the court that 'the primary purpose' of the website is 'to infringe, or to facilitate the infringement of, copyright'.
Injunctions against Australian websites will continue to be considered under the existing provisions of the Copyright Act.
Blocking injunctions have been granted by courts in the United Kingdom and other European countries requiring ISPs to block access to overseas websites particularly websites associated with BitTorrent file sharing, notably 'the Pirate Bay'.
Rights holders have criticised the inclusion of a test that requires the applicant to show that 'the' primary purpose of the overseas website is copyright infringement. Foxtel, for example, argued for the use of the lower threshold that the overseas website have 'a substantial purpose or effect' of infringing copyright, or alternatively, that the test be lowered to establishing that the overseas website has 'a' primary purpose of copyright infringement. These proposals were rejected by the Senate Legal and Constitutional Affairs Committee.
At the same time, opponents of the legislation have expressed concern that the legislation might be used to obtain blocking injunctions against websites operating for legitimate purposes, including some VPNs.
It now remains to be seen just how the court will apply the 'primary purpose' test and how far the amendments will go in practice to satisfying the demands of rights holders for greater protection.
An application to the Federal Court for a blocking injunction will be possible the day after the bill receives royal assent, which is likely to be within the next week or so.
For further information, please contact:
Rebekah Gay, Partner, Herbert Smith Freehills
rebekah.gay@hsf.com
