Website-blocking injunctions to prevent online piracy

In brief

In an effort to reduce the rate of online copyright infringement, the Australian Government has introduced a Bill that will allow copyright owners to apply for an injunction requiring internet service providers to take steps to block piracy websites from their users. Senior Associate Jonathan Adamopoulos and Lawyer William Coote report on the features and implications of the Bill.

Online copyright infringement and the injunction

Australia may soon join countries such as the United Kingdom in allowing copyright owners to block internet users from having access to websites containing material that infringes copyright, if Parliament passes the Copyright Amendment (Online Infringement) Bill 2015 (Cth) (the Bill) introduced by the Australian Government last month. The proposal, which would involve amending the Copyright Act 1968 (Cth) (the Act), was considered late last year in a discussion paper released by the Attorney-General's Department into online copyright infringement. Other proposals in that paper included extending the liability of internet service providers (ISPs) that fail to take reasonable steps to avoid online copyright infringement, after the High Court ruled in Roadshow Films Pty Limited v iiNet Limited ¹ that ISPs were not liable for authorising the copyright infringement of its subscribers. This proposal does not feature in the Bill.

Under the proposal in the Bill, copyright owners will be able to apply to the Federal Court for an injunction to require carriage service providers (providers), such as ISPs, to take reasonable steps to disable access to the online content. In order for the injunction to be granted, the court would need to be satisfied that:

• the provider is providing access to a website (or 'online location') outside Australia;
• the online location infringes, or facilitates an infringement of, the copyright; and
• the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).

The injunction will not be available for websites hosted in Australia. In such cases, copyright owners currently have the option to bring proceedings directly against the host of the website for copyright infringement. The requirement that the website be for the primary purpose of infringing or facilitating the infringement of copyright means that the injunction will not be available to block websites intended for users to upload content they have created.

Factors taken into account

The granting of an injunction will not be automatic. The Bill provides for a number of matters that the court will need to take into account in determining whether to grant the injunction. These include:

• the flagrancy of the infringement (or the facilitation of the infringement);
• whether the online location make available or contains directories, indexes or categories of the means to infringe copyright;
• whether the owner/operator of the online location demonstrates a disregard for copyright generally;
• whether the online location has been disabled in other jurisdictions for copyright infringement;
• whether disabling access to the online location is a proportionate response in the circumstances;
• whether disabling access is in the public interest; and
• whether the copyright owner has any other remedies under the Act.

The grant of the injunction may also be subject to conditions, including an expiry date or 'sunset clause', which will allow the court to consider the effectiveness and appropriateness of the injunction over time.

Taking 'reasonable steps'

An injunction will require a provider to take reasonable steps to disable an online location that is the subject of the injunction. The Bill does not define what taking 'reasonable steps' involves. While this allows the injunction to be flexible and take into account the fact that mechanisms for disabling access to sites are likely to evolve, it may create some uncertainty for providers as to whether they have taken sufficient reasonable steps.

Four current and common mechanisms for blocking websites were identified by the High Court of England and Wales in Cartier v B Sky B²: namely DNS (domain name systems) name blocking, IP address blocking using routers, DPI-based URL blocking, and two-stage systems.³ Justice Arnold in that case acknowledged that some users could circumvent some of these measures. Notwithstanding this, his Lordship made reference to a report by UK communications regulator, OFCOM, that:

Just because it is technically possible for site operates and end users to circumvent blocking, it does not mean that in practice they will universally do so. The extent to which consumers and site operators will seek to circumvent blocking depends on a wide range of factors. These include the convenience and prevalence of circumvention techniques, the relative attractiveness of legal alternatives (and the opportunity costs of the illegal service foregone) and the ease and efficacy with which site operators can interact with the legal process should they dispute a block. ⁴

What will the new law mean?

The release of the Bill coincides with two significant developments in the prevention of online copyright infringement: the Federal Court's recent decision in Dallas Buyers Club LLC v iiNet Limited⁵, and the draft Copyright Notice Scheme Industry Code (the Code) that was submitted to the Australian Communications and Media Authority last week. These developments may likely be considered by the Senate Legal and Constitutional Affairs Legislation Committee, which is currently reviewing the Bill.

The injunction is expected to be embraced by rights holders in Australia, as it has been overseas. It will allow them to block access to websites notorious for copyright infringement, without the need to pursue individual end-users either via an action in copyright infringement or through the issuing of notices under the Code. It is an option that is also less likely to cause concern regarding the release of personal information of end-users, which was one of the chief concerns identified by ISPs and considered by the court in the Dallas Buyers case.

The Senate Legal and Constitutional Affairs Legislation Committee is due to issue its report in mid-May 2015. The closing date for submissions is 16 April 2015.