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Article Australia: Law Allowing Blocking of Copyright-Infringing Websites Passed

(June 23, 2015) On June 22, 2015, the Australian Senate passed a bill that will allow copyright holders to request that overseas websites be blocked in Australia on the grounds that those websites have the “primary purpose” of facilitating copyright infringement. The Copyright Amendment (Online Infringement) Bill 2015 had previously been passed by the House of Representatives on June 16, 2015, following its introduction in March 2015. (Copyright Amendment (Online Infringement) Bill 2015, PARLIAMENT OF AUSTRALIA; Copyright Amendment (Online Infringement) Bill 2015), ComLaw website (both last visited June 22, 2015).) It received support from both major political parties in Parliament; the final vote in the Senate was 37–13, with the Australian Greens voting against its passage. (Ben Grubb, Australian Senate Passes Controversial Anti-Piracy, Website-Blocking Laws, SYDNEY MORNING HERALD (June 22, 2015).)

The bill essentially provides the television and film industry with a formal process for combating online piracy of their content in Australia. Rights holders will be able to apply to the Federal Court of Australia to obtain an injunction that requires an Internet service provider (ISP) to “take reasonable steps to disable access” to a particular website (“online location”) hosted overseas. The Court may grant an injunction if it is satisfied that

(a) a carriage service provider provides access to an online location outside Australia; and
(b) the online location infringes, or facilitates an infringement of, the copyright; and
(c) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia). (Copyright Amendment (Online Infringement) Bill 2015 (Cth), new section 115A(1).)

The Court must take several factors into account in determining whether to grant an injunction, including the flagrancy of the infringement, whether the owner or operator of the website “demonstrates a disregard for copyright generally,” whether disabling access to the website “is a proportionate response in the circumstances,” and whether it is in the public interest to disable access. (Id. new section 115A(5).)

The bill will not apply to situations where people use virtual private networks (VPNs) to hide their location in order to access websites that are not available to people in Australia. (Stephen Fenech, New Anti-Piracy Laws Passed to Block Australian Access to Foreign Sites, TECHGUIDE (June 22, 2015).)

The explanatory memorandum accompanying the bill states that the approach to reducing online copyright infringement “is intended as a precise response to a specific concern raised by copyright owners.” (Copyright Amendment (Online Infringement) Bill 2015: Revised Explanatory Memorandum (Circulated by the Attorney-General, Hon. George Brandis QC), at 2.) The bill provides for a “standalone injunction power which operates as a no-fault remedy” against ISPs and will not affect existing copyright infringement laws. (Id.)

Reactions to the Law

Content providers welcomed the new law. Simon Bush, the head of the Australian Home Entertainment Distributors Association, stated “[t]his is a watershed moment. It’s a fantastic day and a really positive sign for the creative content industry, who can invest more as a result.” (Grubb, supra.) Foxtel chief executive Richard Freudstein said, “[t]hese offshore sites are not operated by noble spirits fighting for the freedom of the internet, they are run by criminals who profit from stealing other people’s creative endeavours.” (Id.)

Critics of the bill raised concerns about the potential breadth of the provisions and the risk that some websites that do not intend to host infringing material may be affected. An Australian Greens Senator, Scott Ludlam, argued that “[t]here is increasing evidence to suggest that site-blocking is not the most effective means of stopping piracy. The only effective way to deal with copyright infringement on the kind of scale that the government is concerned about is to just make [content] available: conveniently, affordably and in a timely way.” (Id.) The government has stated that it will review the operation of the new legislation after 18 months, although this was not specified in the bill itself. (Fenech, supra.)

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