12 December 2018
Our recent article here examined the provisions of the Copyright Amendment (Online Infringement) Bill 2018 (Cth) (Bill). That Bill, which was first introduced to the Australian Parliament on 18 October 2018, was passed unamended by both Houses of Parliament on 28 November 2018 and is now in full force and effect.
The speed with which the Act was passed reflects that there was bipartisan political support for the Act. Notwithstanding that bipartisan support, a number of stakeholders have criticised the Act and its potential implications.
Key provisions of the Act
Prior to the commencement of the Act, section 115A of the Copyright Act 1968 (Cth) (Copyright Act) enabled a copyright owner to apply to the Federal Court for an injunction requiring a provider of internet services, a so called carriage service provider (CSP), to take reasonable steps to block access to overseas pirate websites. As noted in our earlier article, the key provisions of the Act expand that injunction regime in the following ways:
Stakeholders were provided with the opportunity to have their views heard when the Bill was referred to the Senate’s Environment and Communications Legislation Committee on 13 November 2018. Notwithstanding the short period given to the Committee to consider the Bill (with its report issued on 26 November 2018), the Committee received submissions from a wide range of stakeholders, from rights holders and their representative bodies, such as Village Roadshow Australia, APRA AMCOS and the Australian Copyright Council, to those entities and their representative bodies subject to the injunctions regime, such as Google, Communications Alliance and the Digital Industry Group Inc (the latter body counts amongst its members Google, Facebook and Twitter).
The main concerns expressed to the Committee were:
A review in two years
Ultimately the Committee took the view that there were appropriate safeguards in section 115A of the Copyright Act to ensure the concerns raised would not materialise. Accordingly, the Committee recommended that the Bill should be passed, without amendment. But the Committee also recommended that the effectiveness of the newly amended section 115A of the Copyright Act is assessed in 2 years.
Time will tell if the changes to the injunction regime have the desired effect of reducing copyright piracy in Australia, without the negative side effects raised in submissions to the Committee, and this will be closely scrutinised in 2020.
If you require any further advice on the Act and its implications, please contact us.
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Dan Pearce, Partner
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Trent Taylor, Partner
T: +61 7 3135 0668
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