Recently, the federal parliament passed the Copyright Amendment (Online Infringement) Bill 2015 (the Bill), which gives copyright holders the ability to apply to the Federal Court of Australia for an order to block websites that have the primary purpose of infringing copyright or facilitating the infringement of copyright. That is, they can apply to the courts to force ISPs to block user access to Piracy Websites.

What is Copyright?

Copyright is a set of economic rights protecting various subject matters. Economic rights include the right of reproduction, right of publication, and the right to communicate work to the public. In Australia, copyright is codified under the Copyright Act 1968 (the Copyright Act) and subsists in two distinct subject matters: works (literary, dramatic, musical and artistic works), and subject-matter other than works (sound recordings, cinematograph films, television broadcasts and sound broadcasts, and published edition of works). The duration of copyright protection will vary depending on the subject matter.

What is the Impact of Copyright Amendment (Online Infringement) Bill 2015?

The law impacts carriage service providers or more commonly known as internet service providers (ISPs). Upon application from copyright holders, the court can impose an order on ISPs, requiring these entities to block access to Piracy Websites that (specifically) operate outside Australia.

When deciding whether to make this order, the court is required to take into account a number of factors. These include:

  • the flagrancy of the infringement or its facilitation;
  • whether disabling access to the online location is a proportionate response in the circumstances;
  • the impact on any person likely to be affected by the grant of an injunction; and
  • whether it is in the public interest to disable access to the online location.

According to the explanatory memorandum released by the Commonwealth, these factors to be taken into account set an “intentionally high threshold test for satisfaction by the Court”. The proposed amendments are intended to create a no-fault remedy against ISPs to prevent copyright infringement and not intended to have any impact on whether an ISP has authorised a particular copyright infringement under the Copyright Act. If an order is granted, there is no presumption created that the ISP has infringed or authorised the infringement of copyright. However, the application of the law and its threshold cannot be confirmed until tested by the courts themselves.

If the application for such an order is successful, the ISPs must comply with the order and website that is the subject of the order will be inaccessible by Australian Internet users. It is also interesting to note that what can constitute copyright infringement under Australian law is quite a broad category. Acts that do not constitute infringement of copyright are prescribed under the Copyright Act under the defence of fair dealing. Concepts such as fair use (which is a defence against alleged copyright infringement in America) currently do not apply in Australia.

Conclusion

Intellectual property can be a valuable commodity and should be protected. However, this is not always an easy task. If you require assistance in gaining a better understanding of your intellectual property rights, including the protection of your copyright, our lawyers have extensive experience in this area and would be happy to assist with protecting and registering your intellectual property. To speak with one of our lawyers today, contact LegalVision on 1300 544 755.

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