Our top 5 Australian copyright developments in 2015

As 2016 begins, we take a look back at the key developments in copyright in 2015 in Australia.   It certainly has been a busy year, with amendments to the Copyright Act, the development of a Copyright Notice Scheme, and not to forget the Dallas Buyers Club litigation, the famous dead cat and houses with “French Provincial style with a Caribbean Influence”.

Section 115A: the website blocking provision

First on our 2015 list is the Federal Court’s new website blocking power, which (although yet to be used) is aimed at tackling online copyright infringement.

The Copyright Amendment (Online Infringement) Act 2015 was enacted on 22 June 2015, and inserts a new s 115A into the Copyright Act 1968 (Cth). This new section gives the Federal Court of Australia the power to order an injunction to require that a carriage service provider take reasonable steps to disable access to an online location that has the “primary purpose” of infringing or facilitating the infringement of copyright.   The Australian provision draws upon the principles established in other jurisdictions’ website blocking legislation, most notably the UK and Singapore.

With rights holders indicating that they are preparing to bring an application under 115A, this certainly looks to be a hot issue again in 2016.

(If you would like more information, Cate Nagy and Anna Spies have published an article in the Intellectual Property Law Bulletin on section 115A, which you can read here.)

Dallas Buyers Club

Number two on this year’s list is (but probably number one in the press) the Dallas Buyers Club litigation. Late last year, Dallas Buyers Club sought preliminary discovery from a number of ISPs of customer names and addresses associated with IP addresses that were alleged to have been used to infringe copyright.

While in April 2015 (see here), Justice Perram was satisfied in principle that the ISPs should give preliminary discovery, his Honour ordered that production be stayed to allow the Court to consider DBC’s proposed correspondence in order to ensure that DBC did not engage in speculative invoicing.   After reviewing the proposed correspondence, in August 2015, Justice Perram found (see here) that two of the four heads of damage were impermissible. DBC were required to give an undertaking as to the claims to be made in the letters, and given that DBC is an overseas entity, was required to pay a bond of $600,000.   Despite an application to revive some of those heads of damages and to reduce the bond, in December 2015 Justice Perram was not convinced that there were any reasons why DBC should be permitted to revisit those questions.

Not only is Dallas Buyers Club a very interesting and important case, but Justice Perram’s many judgments have provided for enjoyable reading, with sentences including “the Court was not going to open the sluice gates until it saw the proposed correspondence and until DBC satisfied the Court that it was that approved correspondence, and not something else, such as a dead cat, that DBC was going to send to account holders” (DBC (No 4) at [10]).

Will the Dallas Buyers Club now come to an end? Following Justice Perram’s December 2015 guillotine order, unless DBC made a further application, the proceeding will be dismissed at noon on Thursday 11 February 2016.

(For more information, see our previous posts on the April decision here and the August decision here.)

  1. Copyright Notice Scheme

The third development this year is another mechanism designed to address online copyright infringement. Following the Government’s request to industry to develop a code that includes a process for notification of customers of alleged infringement, the Copyright Notice Scheme Industry Code was released by the Communications Alliance in April 2015.

Under the Copyright Notice Scheme:

  • The ISPs will accept notices of alleged infringement from Rights Holders. The Rights Holders will match the IP address associated with the alleged infringement with its account holders and send a notice to the Account Holder.
  • An account holder who receives three notices within a 12 month period will be able to seek an independent review of the notices.
  • Where the challenge is not initiated or is not successful, the account holder will be added to a “final notice” list.
  • Where a rights holder files a preliminary discovery application in a court seeking access to the details of account holders, the ISPs will act reasonably in relation to that application.
  • Any identifying details of the account holders will only be provided to the rights holder following a Court order.

While it was due to come into effect on 1 September 2015, the Australian Communications and Media Authority is still to register the code. Registration awaits ISPs’ and rights holders’ agreement upon the apportionment of costs for the scheme (see report here).

  1. The Hotplate v My Kitchen Rules

At number four is the legal pressure test between Channels Seven and Nine over whether Nine’s new show, The Hotplate, is a rip-off of My Kitchen Rules. Seven argued that Nine’s show infringed its copyright, and pointed to a number of common elements alleged to have been taken from MKR by the Hotplate.

Seven failed to obtain an injunction to stop Nine from showing any more episodes of Hotplate. Justice Nicholas found that there was not a strong prima facie case of infringement, even though the format of the programs were similar and many key elements were in common. Justice Nicholas also found that the balance of convenience favoured Nine, noting that Hotplate was a key piece of programming.

Reality television formats are notoriously difficult to protect under copyright laws. The dispute has been listed for final hearing in March 2016, so we look forward to seeing the further developments in this space.

(For more information, see our previous post here.)

  1. Coles v Dormer

And finally, number five on our list for 2015 is the Queensland decision in Coles v Dormer [2015] QSC 224, primarily for its rather unusual orders, which included that the defendants shall “remove [the arched and circular windows] replace with rectangular or square windows”.

The case concerned whether copyright in certain building plans was infringed by reproducing those plans and constructing a home based on those plans, and if so, what should be the remedies. In a very usual series of facts, Mr Coles bought Lot 16, The Sands Port Douglas at auction. Mr Coles loved the “French Provincial style with a Caribbean Influence”. However, rival bidders Mr and Mrs Breden missed out and then constructed a replica house three houses away.

In the Supreme Court of Queensland, Henry J found that the building plans had been reproduced in the form of the Breden House plans and the construction of the Breden House. Henry J made a series of unusual injunctive orders that required that the features of the Breden’s house that made it similar to the Coles house be removed or altered, in order to significantly reduce the appearance of replication. Henry J took into account the fact that the defendants chose to press on and build the house long after the allegation of infringement was raised and even after the action for infringement was afoot.

For those of you who are wondering (like I was) what a “French Provincial style with a Caribbean Influence” looks like, some photographs of Lot 16 The Sands still appear on realestate.com.au.