The Pirates of Botany Bay

The Federal Government has issued a list of proposed changes it anticipates will curb Australia’s thirst for illegal downloading, in light of Australia’s global title as the worst online copyright piracy nation per capita.

The effect of these changes will compel Internet Service Providers (ISPs), such as Telstra, Optus and iiNet to block or take alternative measures which would seek to combat the rising enthusiasm for online piracy.

The proposed changes will include reasonable steps that can be taken by ISPs to discourage or reduce online copyright infringement, even where an ISP may not have direct power to prevent its customers from committing an infringing act.

ISPs will be asked to issue notices to customers who download illegally before restricting internet access, issuing fines or providing customers details to copyright holders, who then have the option to commence legal proceedings.

Federal Attorney-General George Brandis has repeatedly warned ISPs that they can no longer pretend to be “innocent bystanders” and signalled that he would introduce legislation that would allow copyright holders to seek injunctions which would force ISPs to block downloading sites.

This latest push by the Federal Government seeks to essentially overrule a previous decision made by the High Court in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. The High Court ruled in this case that iiNet did not operate or control the infringing sites, and there were no reasonable steps that could have been taken by iiNet to reduce its subscribers’ infringements. Effectively, the decision sought to severely limit the circumstances in which ISP could be found liable for authorising an act by a subscriber that infringes copyright.

The reasoning in Roadshow Films is similar in effect to the reasoning in the successful defence mounted by McLaughlins Lawyers for its client in proceedings brought against it by international mega brand Louis Vuitton in Louis Vuitton Malletier SA v Toea Pty Ltd [2006] FCA 1443.

Consumer group Choice has been quick to criticise the proposed changes which fail to address the reasons behind the explosion of internet piracy in Australia, including inflated prices for IT goods bought in Australia compared to the rest of the world.

While copyright holders are welcoming the proposed changes, it is too early to predict whether this scheme will be effective in reducing copyright infringement.