Last year, the new website blocking provisions to the Copyright Act 1968 (Cth) took effect with the addition of section 115A by the Copyright Amendment (Online Infringement) Act 2015. The new provision is the latest of numerous attempts at addressing the issue of online piracy. This year sees the first application made under this section, by Village Roadshow, Disney, six other applicants to require fifty Australian ISPs to block access to video sharing site SolarMovie.

Section 115A of the Copyright Act

Section 115A of the Copyright Act 1968 provides a mechanism by which copyright holders can compel ‘carriage service providers’ (CSPs) to disable access to an ‘online location’ that infringes or facilitates infringement of copyright. Similar legislation has been enacted in the United Kingdom, Europe, and Singapore. Interestingly, this similar legislation has been used previously against SolarMovie, with Singapore’s High Court last month ordering Singaporean ISPs to block access to the site.

Section 115A contains some fairly broad terminology, despite the fact that it purports to be a ‘precise response to a specific concern raised by copyright owners’. For example, the term ‘online location’ has been deliberately left undefined (although it only applies to ‘online locations’ outside Australia). Defining what an ‘online location’ is will be a challenge for the Courts when assessing s115A applications.

The provision has been drafted such that it applies where ‘online locations’ either infringe or facilitate infringement of copyright, or where the primary purpose of the ‘online location’ is to infringe or facilitate infringement of copyright. This presents a further challenge to Courts to define under what circumstances and to what extent an ‘online location’ facilitates copyright infringement. However, it appears to be clearly targeted at services which provide access to but do not host infringing content. It is interesting to note SolarMovie’s disclaimer “SolarMovie provides links to other sites on the internet and doesn’t host any files itself.”

The Future of the Website Blocking Provision

Although it is likely to be some time before an outcome of the case is known, the current application to block SolarMovie will be an important test of section 115A and its effectiveness. Given the ability of internet users to simply and easily circumvent methods of reducing or eliminating copyright infringement (through the use of VPNs or other concealment techniques)t, a large question remains over whether the provision will achieve its stated aim of reducing online copyright infringement. Even assessing the effectiveness of s115A in this regard will be a difficult task, as it may simply drive piracy to less visible forms. Its largest effect, perhaps, may be a reduction in or elimination of the ability of sites like SolarMovie to profit (through advertising revenue) from facilitating copyright infringement.

The landscape of online copyright infringement is complex. The internet, designed to facilitate the unrestricted flow of information necessarily dictates that this information also includes information that may infringe copyright. Section 115A is merely the latest of attempts to control that flow of information. Section 115A is likely to be more of a hindrance than an obstruction to those wishing to engage in copyright infringement. If the application to block SolarMovie proves successful, section 115A will nonetheless be an important addition to the copyright holder’s arsenal.

Daniel Smith

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