As part of the suite of measure to tackle online copyright infringement, the Government has introduced the Copyright Amendment (Online Infringement) Bill 2015. The arrival of the legislation was foreshadowed in the discussion paper last year, however the bill presented to parliament on 26 March has a number of significant departures from that proposal.

We’ve outlined the major components of the bill below. A tight consultation period means that submissions on the bill are due by 16 April.

Priority areas for reform

With both the copyright infringement notice scheme and website blocking underway, we would hope that attention can now turn from strict enforcement to some of the the other pressing copyright reform issues. As the Competition Policy Review noted, IP is a ‘priority area for review’ with IP rights ‘facilitating (or inhibiting) innovation, competition and trade’.

While in no way detracting from the fact that online copyright infringement is a serious issue, so is that fact that teachers can’t caption AV content for their hearing impaired students, that online platforms can’t locally host user generated content and orphaned colonial era letters will never join the public domain. And that's without even touching on the essential reforms to copyright exceptions proposed by the ALRC last year. 

Summary of the Website Blocking Bill

• Parties and Process

The bill provides that rights holders  or their licencsees can apply for a court order against a number of ISPs to block access to 'online locations' whose 'primary purpose' is to infringe, or facilitate the infringement, of copyright (website blocking).

The owner/operator of the site can apply to be joined as party, and it will be within the court’s discretion to allow other parties (such as consumer advocates) to intervene. Consumer or public interest advocates will not be able to seek review or revocation of orders unless they are ‘prescribed’.

Rights holders will bear the cost of the court process as long as the ISPs do not contest, however the indemnity for ISPs that was suggested in the discussion paper is no longer there, one of the concerns raised by the Communications Alliance. ISPs (and their users) will bear the costs of enforcement.

• The sites that can be blocked

In order to get an injunction, the online location must:

- be operated outside of Australia;

- infringe or facilitate the infringement of copyright; and

- have the primary purpose of infringing or facilitating the infringement of copyright

This is a shift from the 2014 discussion paper which proposed the test be a site whose ‘dominant purpose’ was copyright infringement. The addition of ‘facilitation’ has the potential to encompass sites from VPNs to cloud storage.

With such a wide scope, the factors that a court is directed to consider are of primary importance. Currently the bill provides that the court must take into account:

- The flagrancy of the infringement, or the facilitation of infringement

- Whether the online location makes available or contains 'directories, indexes or categories of the means to infringe' copyright

- Whether the owner or operator demonstrates a 'general disregard for copyright generally'

- Whether the site has been blocked for copyright infringement in other jurisdictions

- Whether blocking access is a proportionate response

- The impact of any person, or class of person, likely to be affected

- The public interest

- The steps taken to notify the owner/operator of the site

- Any other remedies available to the rights holder under the Copyright Act

- Any other matter prescribed by regulations

- Any other relevant matter

There are some notable omissions from last year’s discussion paper, including protection for ‘freedom of expression’. Some new safeguards have been added, including the flagrancy of the infringement and the public interest.

The court has full discretion to direct ISPs to use particular methods/technology to carry out the block. The UK experience has shown that the factor of proportionality is particularly relevant to deliberations on method. 

The committee is due to report by 13 May 2015