Copyright Amendment (Online Infringement) Act 2015

Overview

The Copyright Amendment (Online Infringement) Act 2015, enacted by the Parliament of Australia, addresses the problem of online copyright infringement facilitated by websites and online services located outside Australia. The Act amends the Copyright Act 1968 to provide copyright owners with a more effective legal remedy against carriage service providers, such as internet service providers, who enable access to sites that infringe copyright. The primary policy objective is to empower copyright owners by allowing them to seek court injunctions that require these service providers to take reasonable steps to disable access to such infringing online locations. This legislative amendment thus aims to bolster the enforcement of copyright laws in the digital age, ensuring that copyright owners have adequate legal recourse to protect their intellectual property rights. The Act specifies that the Federal Court of Australia is the appropriate forum for such injunctions, excluding the State and Territory Supreme Courts from having jurisdiction over these matters. It also outlines the criteria the Court must consider when deciding whether to grant such an injunction, including the flagrancy of the infringement, the availability of directories or indexes facilitating copyright infringement, and the potential impact on the public and affected parties. Additionally, the Act mandates that copyright owners must notify the relevant service provider and, if possible, the operator of the infringing online location, of any application for an injunction. This ensures transparency and gives all relevant parties the opportunity to be heard in the proceedings.

Scope and Application

The Copyright Amendment (Online Infringement) Act 2015 amends the Copyright Act 1968 to provide a new avenue for copyright owners to seek relief against online infringements that occur through online locations outside Australia. The Act applies to copyright owners who can demonstrate that a carriage service provider, such as an internet service provider, is facilitating access to such infringing content. The primary purpose of the online location must be to infringe or facilitate the infringement of copyright, whether within or outside Australia. The Act provides for the Federal Court to grant injunctions requiring the carriage service provider to take reasonable steps to disable access to the infringing online location. The scope of the Act includes all copyright owners who can meet the specified criteria, and it applies to any carriage service providers involved in facilitating access to the infringing content. The jurisdictional reach of the Act is national, with the Federal Court being the primary forum for any proceedings under this Act. The Act explicitly excludes state and territory Supreme Courts from having jurisdiction over applications made under this Act. The Act does not specify any particular exclusions, exemptions, or thresholds, but it does allow the Federal Court to consider various factors when deciding whether to grant an injunction, such as the flagrancy of the infringement and the public interest. The Act also provides for the possibility of varying or rescinding an injunction if circumstances change.

Key Provisions

The Copyright Amendment (Online Infringement) Act 2015 introduces significant changes to the Copyright Act 1968, particularly in relation to online copyright infringement. The Act allows the Federal Court of Australia to grant injunctions against carriage service providers that offer access to online locations outside Australia where such locations infringe or facilitate the infringement of copyright (section 115A(1)). The primary purpose of these online locations must be to infringe or facilitate copyright infringement, either in Australia or elsewhere (section 115A(1)(c)). The injunctions require the carriage service provider to take reasonable steps to disable access to the infringing online location (section 115A(2)). The Act specifies that the parties involved in such proceedings are the copyright owner, the carriage service provider, and potentially the operator of the online location, if they apply to be joined as a party (section 115A(3)). The copyright owner must notify both the carriage service provider and the operator of the online location of the application for an injunction, although the Court can waive the requirement to notify the operator if the copyright owner has made reasonable efforts to identify and contact them (section 115A(4)). In deciding whether to grant the injunction, the Court may consider several factors, including the flagrancy of the infringement, the availability of directories or indexes of means to infringe copyright, and whether disabling access is proportionate and in the public interest (section 115A(5)). The Act also outlines the obligations and requirements for the parties involved. For instance, the copyright owner must provide affidavit evidence in support of their application, and the carriage service provider is not liable for costs unless they enter an appearance and participate in the proceedings (section 115A(6) and (9)). Furthermore, the Supreme Courts of the States and Territories do not have jurisdiction over applications under this Act, which are exclusively within the purview of the Federal Court (section 131A(2)). The Act also modifies existing sections of the Copyright Act 1968 to incorporate these new provisions, ensuring that they are applicable to the relevant sections of the Act (sections 119, 120(1)(b), 131A, and 131D). In terms of enforcement, the Act provides for potential civil and criminal consequences for breaches. While the specific penalties are not detailed in the Act itself, the severity of penalties would typically be determined by the courts based on the nature and extent of the infringement. Generally, breaches of copyright laws can lead to substantial fines and, in some cases, imprisonment. The Act ensures that the courts have the authority to limit the duration of, rescind, or vary the injunctions granted under section 115A, providing flexibility in managing ongoing cases (section 115A(7)). These measures collectively aim to strengthen the enforcement of copyright laws in the digital age, particularly concerning online infringements.