The Australian Government is supporting Australia’s copyright industries – the third largest income generator, with improved online measures, injunctions, strong blocking provisions and increasing the responsibilities of carriage service providers.
Why do we need new copyright laws?
As Australia moves from an industrial to information economy, the protection of intellectual property increases the wealth and value of businesses seeking growth. Unlike registered rights (such as patents, trade marks, designs), the contribution of copyright industries is conservatively estimated as Australia’s third largest income generator. This includes employing over 1 million Australians and contributing $130billion to the economy. Anecdotally, IP professionals see copyright in most transactions and businesses.
A common misconception is that copyright is limited to the arts, radio, television, software and advertising. This is inaccurate. Copyright industries include all of Australia’s top export and income generating industries, such as: media and gaming equipment, online platforms, musical instruments, photocopiers, fashion, homewares, toys, architecture, design, education and telecommunications.
The problem with copyright industries
The problem with improving the return on investment of copyright industries in Australia is that theft is too easy and the cost of effective enforcement is too high. This is frequently because the laws and tools for enforcement are not realistic and need to update at a pace that outruns the “work arounds” copying technology allows. Imagine a software developer standing in the middle of a full MCG. If one consumer reproduces their work, it is a slap on the back. If another consumer takes their code and places it online, it is as if the entire stadium lined themselves up and slapped the innovator on the back at once. Each user feels their impact is not significant, but the collective force can kill a person. Online infringement kills entire business. The online environment means fast take-downs (after a few slaps) and carriage providers (stadium level impact) must take responsibility for some of the issues impacting businesses in these industries.
What are the copyright online infringement laws?
The Hon. Paul Fletcher MP delivered a second reading speech on Thursday 18 October 2018 commending the introduction of the Copyright Amendment (Online Infringement) Bill 2018 to the House of Representatives. The Bill is a response to concerns over the ease with which an online location could be re-established with the same infringing content, particularly given technological advancements. These include alternative pathways to infringing locations such as cyberlockers, the comparative delay and cost to copyright owners seeking to obtain orders against an infringing online location, and the ability of users to continue to locate infringing online locations by way of search engines.
The Bill amends the scope of the current Section 115A of the Copyright Act 1968 to ensure the government’s website-blocking scheme, introduced in 2015, remains up to date and effective. It aims to enable copyright owners to enforce their rights more effectively by disrupting online locations operated outside Australia supplying material to Australians that infringes copyright or facilitates the infringement of copyright. The amended scheme would allow copyright owners to apply to the Federal Court of Australia for an injunction requiring a carriage service provider (CSP) to take reasonable steps to disable access to the relevant online location.
According to the Explanatory Memorandum, if passed the Bill will:
- Amend the wording of Section 115A to include those online locations which have the ‘primary effect’ of infringing or facilitating the infringement of copyright. Currently Section 115A only applies to online locations having the ‘primary purpose’ of infringing or facilitating the infringement of copyright. By encompassing a number of online locations that did not intend but nevertheless had the primary effect of engaging in or facilitating infringing activity, this amendment would overcome the evidentiary burden placed on copyright owners to establish the ‘primary purpose’ of an infringing online location.
- Enable the copyright owner and carriage service provider to agree to apply the injunction to other domain names, URLs or IP addresses that provide access to the online location after the injunction has been granted. It would no longer be necessary for copyright owners to commence new proceedings once new pathways to the online location had been created. This step is intended to improve efficiency in Federal Court procedures for obtaining blocking orders, and encourage greater use of website-blocking orders by copyright owners as a mechanism for protecting their rights.
- Further reduce the evidentiary burden on copyright owners by creating a rebuttable presumption that an online location that is infringing or facilitating the infringement of copyright is outside Australia and therefore subject to the application of Section 115A.
- Enable copyright owners to seek an injunction which requires search engine providers to take reasonable steps to ensure that search results will not refer users to the infringing online location.
- Enable the Minister to declare particular online search engine providers or classes thereof be exempt from the blocking scheme. This amendment mitigates the risk that legitimate sharing sites will be caught by the blocking provisions.
The Bill follows several Federal Court decisions which have considered the application of Section 115A since it was first introduced into the Act in 2015 (Roadshow Films Pty Ltd v Telstra Corporation Ltd  FCA 1503, Universal Music Australia Pty Limited v TPG Internet Pty Ltd  FCA 435, Roadshow Films Pty Ltd v Telstra Corporation Limited  FCA 965, Foxtel Management Pty Limited v TPG Internet Pty Ltd  FCA 1041). These cases are a clear indication that CSPs providing access to an online location outside Australia with the purpose of infringing or facilitating infringement of copyright have an obligation to take reasonable steps to disable access to that online location.
As technological enhancements present challenges for government anti-piracy mechanisms, further amendments to the Copyright Act as contemplated by the Bill will strengthen existing protections afforded to copyright owners.
These new laws will provide particular support to the following industries:
- Carriage Service Providers
- Software, databases, platforms producers
- Press and literature
- Music, theatres, films, TV, radio and photography
- Visual and graphic arts, advertising services
- Architects, engineers, surveyors and interior designers
- Manufactures and sellers or media, electronic, game and computer equipment
- Fashion, homeware, jewellery, furniture, wall coverings/textiles, carpets
- Toys and games
- General physical wholesale and retail industries
If you or your business has invested time, talent and other resources to create new works or material and are suffering losses due to online dissemination, please contact us.
Author - Jacqueline Plunkett and Sheona Robertson