Legislation allowing copyright holders to seek a court injunction, forcing internet service providers to block access to overseas websites that facilitate piracy, have been passed by the Senate in June 2015 with bipartisan support.

In effect, the new s 115A of the Copyright Act 1968 (Cth) empowers the Federal Court of Australia to order a ‘carriage service provider’ to take ‘reasonable steps’ to disable access to an ‘online location’, upon the application of an owner of copyright.

Notably, s 115A does not apply to locally hosted sites. It will be necessary for copyright owners to pursue existing remedies in respect of local websites.

Before making an order for an injunction, the Court must be satisfied that:

• the carriage service provider provides access to an online location outside Australia;
• the online location infringes or facilitates the infringement of copyright; and
• the “primary purpose” of the online location is to infringe or facilitate the infringement of copyright.

When granting an injunction, the Court must consider the seriousness of the infringement, whether blocking access is appropriate or in the public interest, and the impact on people likely to be affected. The Explanatory Memorandum makes clear, for example, that the threshold for ‘primary purpose’ is a high one. The legislation is not intended to target websites with a small amount of infringing content.

The amendment has been opposed by consumer advocacy groups and internet providers who have expressed the opinion that “website blocking is a drastic remedy and a blunt tool” and that the legislation will be sought to be used to exclude further content presently available in Australia, such as hardcore pornography.

However, the change has been welcomed by rights holders such as Foxtel and Village Roadshow, who claim rampant piracy is costing Australian jobs.

A website has been established https://s115a.com/ which has the stated intent of listing all websites blocked under this legislation as well as caselaw in this space.  We will keep readers informed as further developments arise in this space.

For more information please contact us.