What do you do when someone steals all your hard work by imitating your business’ website or taking and posting your copyrighted content without permission? When it comes to the issue of online piracy of TV shows, movies, music and other copyrighted material, we know too well the tug of war between free and easy access to entertainment, and the legal rights and monetary losses that production companies suffer as a result of piracy. This article looks at Australia’s current anti-piracy laws.

Anti-Piracy Laws in Australia

Protecting and enforcing your legal rights online can be extremely difficult as the law struggles to keep up with the fast-paced and ever-changing nature of the Internet.

In Australia, the Copyright Amendment (Online Infringement) Bill 2015 (Cth) passed through the Senate in 2015, creating an avenue for copyright owners to apply to the Federal Court for an injunction (a court order compelling someone to stop doing something) with the power to direct Internet Service Providers (ISPs) to block access to overseas websites that infringe copyrighted content.

The Bill provides copyright owners and exclusive licensees of content with a remedial avenue against those websites that infringe their IP rights. In order to receive an injunction requiring an ISP such as Telstra, TPG, iiNet or Optus to ‘disable access’ to the foreign site from Australia, it must be satisfied that:

  • The geographical origin of the website is located outside of Australia; and
  • The website must have a ‘primary purpose’ of infringing, or facilitating the infringement of, copyright.

In assessing a particular case, factors the Federal Court will take into account are:

  • whether the infringement or facilitation was a flagrant disregard for copyright;
  • whether issuing an injunction to disable access to the site is a proportionate response;
  • the impact on person(s) likely to be affected; and
  • whether it is in the public interest.

The reforms were met with some controversy, as on the one hand they provide a great benefit for those who lose out on online piracy and give new powers to block foreign websites that might previously be outside of the Australian jurisdiction. However, both in Australia and in other countries where similar laws have been passed, some argue that these provisions still make it too easy for offenders to evade repercussions.

Entertainment companies Foxtel and Village Roadshow are some Australian companies sceptical that the laws do not confer a reliable system of enforcement against pirate sites. In recent months, Foxtel and Roadshow have applied to the Federal Court for a rolling injunction against websites that host pirated content, as well as ‘mirror sites’ without applying for a separate injunction each time it occurs.

Rolling Injunction vs ‘Mirror Sites’

What Foxtel and Roadshow are concerned by is the fact that while the new anti-piracy law might compel an ISP to block one pirate site, a handful of ‘mirror sites’ or copycat sites simply pop up in its place, once the original domain has been blocked.

Understandably this would cause frustration for companies like Foxtel and Roadshow. They are currently appealing to the Federal Court for a rolling injunction against piracy websites. This would enable them to issue out-of-court notices to ISPs to disable access to mirror sites once the original site has been blocked. This would create a more fluid, more efficient system of shutting down piracy websites because rights holders would not have to seek a court order every time they discover a new mirror site.

In recent months, both Foxtel and Roadshow have announced that they will be taking aggressive action against well-known pirate sites such as ‘Solar Movie’ and ‘The Pirate Bay’.

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What do you think of Australia’s anti-piracy laws? Do you agree that there should be a rolling injunction against mirror sites of platforms that illegally stream music, movies and television shows? Let us know on Twitter at @legalvision_au. If you have questions about copyright, get in touch with our IP lawyers.

Alexandra Jones

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