Proposed new website blocking powers for the Federal Court

There has been a great flurry of activity in the online copyright infringement space lately. Along with the Dallas Buyers Club decision (see our previous post here) and the proposed Industry Code for a copyright Notice scheme (here), the Government has recently introduced a Bill that would give the Federal Court a power to block overseas website that have the primary purpose of infringing, or facilitating the infringement, of copyright.

The Copyright Amendment (Online Infringement) Bill 2015 was introduced to the House of Representatives on 26 March 2015.   The Bill proposes to introduce a new section into the Copyright Act 1968 that would give the Federal Court of Australia power to order that an ISP block access to websites that have the primary purpose of infringing copyright.

In brief summary, the key elements of the Bill are as follows:

  • On application by a copyright owner, the Federal Court may order an injunction against an “online location” that has the primary purpose of infringing or facilitating the infringement of copyright. The explanatory memorandum states that the “primary purpose” test is an intentionally high threshold as a safeguard against potential abuse and the term “online location” has been left undefined so as to be broad and technologically neutral.
  • The injunction is to require that the ISP “take reasonable steps to disable access to the online location”. The Court has the power to make detailed orders in relation to the technical means to be adopted by the ISP to disable access.
  • The copyright owner must notify the website operator of the application. While not automatically a party to the proceeding, the website owner may apply to be joined to the proceeding, or may apply to rescind or vary any injunction ordered.
  • In determining whether to grant the injunction, the Court must take a list of matters into account. This includes the flagrancy of the infringement, whether that website has been blocked by overseas orders, whether disabling access is a proportionate response in the circumstances, the impact on any person affected by the injunction and the public interest.

A website blocking provision was first proposed by the Government as part of the Online Copyright Infringement Discussion Paper (see our earlier post here).   The Government referred to existing provisions which have been enacted in the UK and in Ireland, which have been successfully used to block websites such as “the Pirate Bay”.

The Bill has been referred to the Senate Legal and Constitutional Affairs Committee for review.  The reporting date for the Committee is 15 May 2015.