First Test for New Site-Blocking Power

Nov 20, 2015
Reading Time: 2 minutes
Written by Dominic Woolrych

Back in late June, the Abbott government passed the Copyright Amendment (Online Infringement) Act 2015, introducing a new law that allows copyright owners to apply directly to the Federal Court of Australia for an injunction to block any international website that is found to be infringing on copyright. If successful, the Federal Court has the power to order a carriage service provider, which includes Internet Service Providers (ISPs), to block access to the website.

First, Here is What You Need to Know:

A high threshold is intentionally set for the new law.

This site-blocking ability can, and should, only be enforced by the court where there is a flagrant disregard of the rights of copyright holders. Flagrancy is to be determined on a case-by-case basis, on the infringer’s intention.

It is a three step test.

The owner of the copyright has to satisfy the court that the carriage service provider provides access from an online location outside Australia, and the primary purpose of that online location is to infringe, or facilitate an infringement of, the copyright.

Copyright infringing sites often provide access from countries that have more relaxed copyright rules and enforcement, like Popcorn Time’s move to Bulgaria shortly before it was taken down last month.

By giving the Federal Court the power to order a site to be blocked in Australia, it gives copyright owners an avenue to enforce their intellectual property rights.

What does the court consider?

As blocking a site is a considerably drastic action, there are several considerations that need to be taken into account. These includes the flagrancy of the infringement, whether disabling access is a proportionate response in the circumstances, and if it is in the public interest to do so.

The court can grant the site to be blocked for a certain period of time, and its decision can be challenged.

Site-blocking in the spotlight

Moray & Agnew, acting for Australian construction company Simonds Homes, sent a letter to an Australian ISP requesting for Indian-based website CHM Construction to be blocked, citing this new law. This may well be the first case that is tested under the new law, though several experts have voiced their doubts that the law has been breached.

We’ll be keeping a keen eye on its developments.

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