A Dark Day For Pirates

Unsurprisingly, the Copyright Amendment (Online Infringement) Bill 2015, introduced into parliament by Communications Minister Malcolm Turnbull in March, passed with the Coalition and Labor’s support 37 -13.

The Bill amends the Copyright Act 1968 (the Act) to enable the owner of a copyright to apply to the Federal Court of Australia for an order requiring a Carriage Service Provider (CSP) to block access to an online location that has the primary purpose of infringing copyright or facilitating the infringement of copyright.

The Bill provides that copyright owners would be able to apply directly to the Federal Court for an injunction to disable access to an infringing online location, without having to first establish the CSP’s liability for copyright infringement or authorization of copyright infringement.

While the injunctive power would only apply to online locations operated outside Australia, the Court must take into account a number of factors before granting an injunction. These factors include:

  • The flagrancy of the infringement or its facilitation;
  • Whether disabling access to the online location is a proportionate response in the circumstances;
  • The impact on any person likely to be affected by the grant of the injunction; and
  • Whether it is in the public interest to disable access to the online location.

Sites such as The Pirate Bay and KickAss Torrents, two of the main platforms which allow users to illicitly download movies and TV shows online without paying, are expected to be the first on the list.

At this stage, the use of Virtual Private Networks (VPNs) will not be affected, with VPN usage unlikely to meet the test to ensure that a technology’s primary purpose is piracy.

VPNs, which help users browse the Internet anonymously, are often used on torrenting websites and avoiding jurisdictional restrictions on some websites but are also employed for legitimate purposes such as evading online surveillance.

Although the Bill is set to be reviewed in two years to gauge the effectiveness of the new laws, critics have already suggested the Bill could have severe unintended consequences for legitimate websites due to its lack of technical specificity regarding how sites will be blocked.

If you seek advice in relation to online copyright infringements, please contact McLaughlins Lawyers Commercial Litigation department for assistance.


Author: Joshua Rath

Partner: Ian Kennedy

Date: 3 July 2015