Of the many hurdles in enforcing copyright online, one of the preliminary issues (and often one of the most complicated) is the problem of jurisdiction. With infringements potentially taking place all over the world, a rights holder may be faced with the dilemma of working out where infringements are occurring, and figuring out how to enforce their rights in that jurisdiction. That dilemma has recently become more straightforward to resolve for Australian rights holders.
On 10 December 2014, the Australian Government announced new measures to combat online copyright infringement. Included in these measures was the ability for rights holders to apply for a court order requiring Internet Services Providers (ISPs) to block access to websites operated outside of Australia where that site provides access to infringing content.
The ability to obtain an order of this kind in Australia is largely an adoption of the approach already in place throughout much of the European Union, including the UK. According to a 2014 Australian Government Discussion Paper on the proposed amendments, this approach:
“…recognises the difficulties in taking enforcement action against entities operating outside the relevant jurisdiction, by giving rights holders an avenue to take immediate action and provides ISPs with the certainty and legal protection of a court order.”
The Copyright Amendment (Online Infringement) Bill 2015 (Bill) passed both houses of Parliament on 22 June 2015 and received Royal Assent on 26 June 2015. As a result there is a new section 115A in the Copyright Act 1968 which provides that, upon application by a rights holder, the Australian Federal Court may grant an injunction requiring ISPs (referred to as Carriage Service Providers or CSPs in the legislation) to take reasonable steps to disable access to an online location.
Importantly for rights holders, the section only allows the Federal Court to grant the injunction in limited circumstances. Section 115A(c) specifies that an injunction will only be granted where:
(a) the CSP provides access to an online location outside Australia;
(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).
Of these criteria, the “primary purpose” test is one of the more controversial aspects of the reforms because it requires rights holders seeking the injunction to demonstrate that the site in issue has, as its main purpose, the infringement or facilitation of the infringement of copyright.
While the term “primary purpose” is not defined in 115A, the Explanatory Memoranda to the Bill states that the factors to be taken into account by the Court in considering granting an injunction “set an intentionally high threshold test” for the purpose of allowing “a specific and targeted remedy to prevent those online locations which flagrantly disregard the rights of copyright owners from facilitating access to infringing copyright content.”
It would appear therefore that 115A is more limited than first imagined. A rights holder is not going to be able to get injunctions to block a site solely on the basis of proving actual infringement.
The threshold test has been set high enough to include only the sites that blatantly infringe/facilitate infringement such as file sharing sites specifically directed at online piracy. The application of the ‘primary purpose’ test also serves to exclude injunctions being available to block sites where copyright infringement may occur, but where that site has an otherwise legitimate purpose.
The line between a legitimate and an infringing primary purpose is one that is going to be difficult to draw and until it is tested by the Courts the overall effectiveness of the reforms will remain unclear.