Tuesday, 21 April 2015

Australian ISPs beware

Australia’s piracy laws could be anchoring some big ships with a new Copyright Bill introduced into the Australian Parliament.  The Bill gives power to the Federal Court to grant injunctions requiring internet service providers (ISPs) to take ‘reasonable steps’ to disable access to sites that infringe or facilitate the infringement of copyright. 

In order to grant the injunction, the Court must be satisfied that:
  • the ISP is providing access to a website outside Australia
  • the website infringes, or facilitates an infringement of copyright, and
  • the primary purpose of the website is to infringe, or facilitate the infringement of copyright whether or not in Australia.
The injunction will not be available for websites hosted in Australia.  This is because existing legal remedies are available for copyright owners who wish to bring proceedings against Australian ISPs who host infringing material. 

The Bill provides a number of factors the Court must consider in determining whether to grant the injunction, including the flagrancy of the infringement, whether disabling access to the website is in the public interest, whether the operator of the website demonstrates a disregard for copyright and whether the website has been disabled in other jurisdictions for copyright infringement.

The bill does not prescribe what would amount to ‘reasonable steps’ to block access, and presumably guidance may be sought from English decisions on this issue.  In England, a common preventative step taken by ISPs is to block the IP address of infringing websites.  A regime also exists for copyright holders to notify ISPs in circumstances where the IP address or hosting location changes.

For further reading, England’s High Court decision in Cartier [2014] EWHC 3354 (Ch) provides an interesting overview of blocking methods employed by ISPs, the costs of injunction applications and also the costs incurred by ISPs in implementing the injunctions.


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