Law Down Under: New Censorship Bill Passed in Australia

Having lived in Australia this Kat tries to turn his attention to the Land Down Under as often as he can. Although the Australian intellectual property law regime takes a lot from its UK and common law counterparts, they have often been a step ahead (or to the side, depending on your perspective) in one way or another. Recently the Australian Parliament passed the Copyright Amendment (Online Infringement) Bill 2015, which aims to give the Australian courts more tools to combat online copyright infringement, or the facilitation thereof. While the provision is not necessarily hugely pertinent to those of us working here in the UK, it is still an interesting one.

According to the Bill's explanatory memorandum, its purpose is to "...enable the owner of a copyright to apply to the Federal Court of Australia for an order requiring a Carriage Service Provider (CSP) to block access to an online location that has the primary purpose of infringing copyright or facilitating the infringement of copyright". The provision, and its purpose, echoes the one under section 97A of the Copyright Designs and Patents Act 1988 in the UK, but arguably goes beyond its UK counterpart.

A very different take on website blocking

The Bill will amend the current Australian Copyright Act 1968 by adding section 115A, through which a copyright holder can apply for an injunction against a carriage service provider [a very broad term, this Kat notes] if they (i) provide access to an online location outside of Australia; (ii) the online location infringes, or facilitates an infringement of, the copyright; and (iii) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia). Unlike section 97A here in the UK, no actual knowledge of infringement or its facilitation is required, which potentially leaves the door open for injunctions against websites or online service providers that had no idea their service was misused, or if a third-party user shares infringing content through those services.

The new provision leaves more questions open than it answers, but arguably, if a website or service provides access to another website or content outside of Australia that contains infringing material, it could potentially fall foul of the provision. Whether 'primary purpose' entails a quantitative or qualitative assessment in terms of provision or facilitation of infringing material is unclear, and undoubtedly will be tested in the courts in the near future. A big concern is also the potential of the Bill's impact on Virtual Network Providers (VPNs), and not just websites, and although Malcom Turnbull, the Minister of Communications, assured VPNs will not be affected, they still remain a possible target under the new provision. VPNs are a valuable tool for those seeking privacy, so their blanket prevention would not be desirable. The lack of definition within the provision is worrisome to service providers, and this Kat will agree this can lead to wide-sweeping results if not properly restricted by the courts.

The courts do have some amount of discretion when it comes to the granting of injunctions, as section 115A(5) provides several different matters they can take into account when assessing each claim. The given matters clearly have been set with websites that provide a means to download infringing material via peer-to-peer programs in mind, as they include considerations such as the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement; whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright; and whether the owner or operator of the online location demonstrates a disregard for copyright generally. The considerations listed do allow for a more nuanced assessment in relation to each website, but still leave a great deal of uncertainty in their application.

The Bill does go above and beyond when it comes to giving copyright holders a new avenue of redress against websites and other services providers that either allow the infringement of copyright, or facilitate it. How far reaching the provision ends up being remains to be seen, but it seems more than likely it will be put to the test very quickly. The sentiment has been far from positive, and illustrates that some measures, although aimed to enable copyright holders to more effectively combat online piracy, can potentially go a step too far in doing so.