Views on the bill
A number of submitters—particularly those representing the interests of
copyright holders—expressed support for the bill. Music Rights Australia (MRA),
for example, stated that the bill:
...is the product of deliberate and considered consultation and
reflects a balanced approach to improving operation of section 115A while still
maintaining the Parliament's intention to enact a prescriptive section to
ensure the no-fault remedy is only used to target the worst of the illegal
MRA's submission states that the bill introduces welcome amendments
which will ensure that section 115A is able to address the serious damage which
illegal offshore sites inflict on the local music industry, while maintaining
appropriate evidentiary burdens for copyright holders.
A number of other submissions expressly endorsed MRA's views, and urged the
Senate to pass the bill without amendment.
Other submissions in support of the bill stated that while section 115A
is operating effectively, there are nevertheless potential gaps and areas in
which that section could be strengthened. These submitters welcomed the
amendments in the bill as targeted and proportionate changes to the injunctive
regime which would enhance its operation and effectiveness.
A number of submissions also emphasised that the bill reflects the outcome of
an extensive consultation and review process.
Submitters opposing the bill argued that section 115A as currently
drafted is operating efficiently and effectively, and consequently there is no
need for further amendment. These submissions also contended that the measures
proposed by the bill are unnecessarily broad, and may give rise to adverse
Submitters opposing the bill also raised concerns that the introduction
of the bill was 'rushed forward' without a thorough review of the extent of any
problems with the current injunctive regime. These submissions argued that the
timeframe for the introduction of the bill was problematic given the
substantial changes proposed, and asserted that the proposed changes prioritise
the interests of copyright owners rather than reflecting the interests of all
For example, the Communications Alliance (CA) submitted that:
The proposed changes appear to reflect only matters raised by
Rights Holders, and do not appear to take into account matters raised by
CSP...Prior to their introduction in the Draft Exposure Bill, CSPs and other
service providers were never provided with a formal opportunity to consider or
respond to the amendments proposed in the Bill.
It also appears that key stakeholders (including the Law
Council of Australia, copyright users and online locations) have not been
consulted. The rushed approach to the consultation on the Exposure Draft of the
Bill was particularly concerning, given the impact of the proposed changes and
in particular, a widening of the threshold test and substantive changes to the
way extended blocking orders can be made.
A number of submissions also provided commentary on specific elements of
the bill, in particular the proposals to:
introduce a 'primary effect' test into section 115A;
extend the injunctive regime in section 115A to online search
engine providers; and
allow the Federal Court to grant 'adaptive' injunctions, which
would permit copyright holders, carriage service providers and online search
engine providers to extend an injunction to additional online locations without
a further order by the Court.
Stakeholder views on these matters are considered in further detail
Introduction of a 'primary effect'
Proposed section 115A(1) would permit a copyright owner to apply to the
Federal Court for the grant of an injunction in respect of an online location
that infringes, or facilitates the infringement, of copyright, and has the
primary purpose or the primary effect of infringing or facilitating an
infringement of copyright.
2.9 Australian Film and TV Bodies and Foxtel argued that the existing test
in section 115A (that is, the 'primary purpose' test) may hinder or prevent the
achievement of the objectives of the injunctive regime, as the test is often
difficult to meet.
Foxtel, for example, stated that:
It can be difficult in some circumstances to establish that
some online locations have the 'primary purpose' of infringing copyright (the
current threshold), even though that is the practical effect of the locations.
This is relevant to online file-hosting services, such as cyberlockers, which
are widely used to facilitate the unauthorised sharing of copyright material.
Submissions supporting the introduction of a 'primary effect' test also
argued that this test would assist the injunctive regime in section 115A of the
Copyright Act achieve its intended purpose. This is because it would ensure
that the scheme is able to capture online locations—in particular
'cyberlockers'—which may not have the primary purpose of infringing copyright,
but which are nevertheless making infringing content available to Australian
In this regard, the Australian Copyright Council (ACC) stated that the
introduction of the 'primary effect' test would:
...recognise the adaptive and evolving nature of technology and
is therefore consistent with the current Copyright Modernisation Review and
other previous reviews which seek copyright reform that acknowledges a need for
flexibility and technology neutral language.
Submitters supporting the introduction of a 'primary effect' test also
acknowledged concerns that the test could capture legitimate services. However,
the submitters argued that these concerns were misplaced, noting in particular
the variety of factors that the Federal Court would be required to consider
before granting an injunction, and the fact that the burden of establishing
that an online location meets the 'primary effect' test continues to fall on
the copyright owner.
The majority of submissions opposing the introduction of a 'primary
effect' test raised concerns as to its breadth, emphasising that the current
'primary purpose' test sets an intentionally high threshold for copyright
owners seeking injunctive relief. The Australian Digital Alliance (ADA),
Communications Alliance and the Pirate Party Australia argued that lowering
this threshold could result in the site blocking scheme in section 115A being
applied to online locations operated for legitimate purposes.
The ADA and the Communications Alliance further argued that this could create
difficulties for smaller businesses that lack the resources to invest in
sophisticated copyright removal technology.
The ADA stated that the introduction of a 'primary effect' test:
...ignores the reality that, due to the lack of general
exemptions in our [Copyright] Act, a large number of innocent and everyday
activities currently infringe copyright in Australia, including generating
memes, auto-translation, cloud storage, caching and indexing, and sharing
screenshots of websites...This means that sites which are perfectly legal in
other jurisdictions with more internet-appropriate copyright laws, such as the
United States, infringe copyright in Australia.
The Pirate Party Australia also argued that the breadth of the proposed
'primary effect' test could place undue burden on the operators of online
locations, stating that the test 'requires all online locations to monitor and
restrict their user-generated content to avoid risking violation'.
Finally, opponents of a 'primary effect' test argued that such a test is
unnecessary. In this respect, the submitters argued that section 115A as
currently drafted is operating effectively, and that the current 'primary
purpose' test has not presented a barrier to copyright owners seeking
For example, Google LLC (Google) stated that it is 'not aware of any cases
where an applicant has failed to have a site blocked because of the current
formulation of the test' in section 115A. Google added that:
Not a single hypothetical example of such a site has been put
forward by those seeking the amendments. This can only be explained by the fact
that no such examples exist, or that such examples do exist, but those seeking
the amendments are concerned that the Australian public would oppose the
amendments if those sites were revealed.
The Department of Communications and the Arts' submission acknowledged
the concerns relating to the inclusion of a 'primary effect' test in section
115A—particularly the concerns that the breadth of the proposed test would
result in the capture of legitimate online locations.
However, the department argued it is 'highly unlikely' that legitimate
online locations would be captured by the injunctive regime, stating that:
Legitimate online locations that may have some infringing
activity will not have the 'primary purpose or primary effect' of infringing
copyright, or facilitating the infringement of copyright. While they may have
some effect in terms of infringing material, this will generally not be the
intended primary purpose of the location, nor its primary effect. Rather, the
injunction provisions will only capture locations that meet this threshold,
such as 'cyberlockers' that, in some instances, predominantly contain
infringing copies of online material.
The department emphasised that subsection 115A(5) sets out checks and
balances on the exercise of the Federal Court's power to grant an injunction.
The department concluded that it is difficult to envisage the circumstances in
which the Court would grant an injunction against a legitimate online location
(such as Pinterest or Dropbox) unless that location were to alter its services
so as to have the primary purpose or primary effect of infringing or
facilitating the infringement of copyright.
Extension of injunctions to online
search engine providers
The bill seeks to extend the injunctive regime in section 115A of the
Copyright Act to online search engine providers. In this respect, proposed
subsection 115A(2) provides that an applicant may request that an injunction
require an online search engine provider to take such steps as the Court considers
necessary so as not to provide a search result that refers to the online
location. Proposed subsection 115A(2B) further seeks to permit an injunction to
require online search engine providers not to provide search results that
include certain domain names, URLs and IP addresses.
A number of submissions in support of these measures noted that the
proposal to extend to the injunctive regime to online search engine providers
is a narrow and proportionate measure which responds to concerns identified during
the departmental review of section 115A, and which will have a meaningful
impact on the volume of traffic to pirate sites.
Submissions in support of extending the application of section 115A to
online search engine providers also emphasised the key role that search engine
providers can play in facilitating the infringement of copyright, noting that
the current injunctive regime does not currently extend to these entities.Australian Film and TV Bodies provided detailed
commentary on the role that online search engines have in the infringement of
copyright, stating that:
The dominant role played by search engines in facilitating
the ongoing access by internet users to these infringing locations is reflected
in consumer research conducted by Screen Audience Research International in its
'Role of Search in Piracy' Report. This report found that:
- 70% of first-time consumers of illegitimate content
online use search engines when discovering a source of illegal
content. Of these consumers, 44% state that they were not actively looking
for infringing technology – they are directed to it by the operation of the search
- The most common search terms leading consumers to
pirate sites are generic and do not demonstrate any clear intent to seek
infringing content or knowledge of its location; and
- 47% of online consumers trying to access a blocked
infringing site use search engines to find an alternative site.
Australian Film and TV Bodies further noted that:
'the actual webpage traffic data shows that search engines
are responsible for an extraordinary 98% of all referrals by intermediaries to
blocked sites. This data clearly demonstrates that search engines are a conduit
to online pirate content and uniquely placed to meaningfully impact access to
pirate websites, through compliance with site blocking orders'.
Screen Producers Australia and Foxtel argued that the extension of the
injunctive regime to search engine providers would not result in undue burdens
for search engine providers, noting that providers already modify available
search results to comply with Australian law.
In this respect, Foxtel stated that:
...search engines currently de-index URLs for purposes
including national security, violation of defamation and privacy and security
laws, and can remove that content at the request of government and in some
cases individuals. We note that where search engines remove content in line
with their product community standards this is done on a voluntary basis,
rather than being compelled to do so by law, adding further weight to the
argument that removal of content by search engines is relatively easy.
The Australian Copyright Council and Australian Film and TV Bodies noted
that the extension of the injunctive regime to search engine providers is
broadly consistent with international best practice—in particular with recent
developments in the European Union.
The ADA, Communications Alliance and Google opposed the extension of the
injunctive regime to online search engines. These submitters argued that it may
increase the costs of the injunctive regime and increase regulatory burden,
without delivering additional benefits to rights holders.
In this regard, the ADA argued that the existing site blocking regime already
ensures Australian users are unable to access infringing material, stating
...it is unclear how adding search engines to the list of
service providers covered by the website blocking scheme would change access to
the sites in Australia when they are already blocked at the ISP level. Material
on these sites will already be unavailable to users searching from Australia.
As such, this proposed extension has no clear purpose or effect.
Submissions opposing this measure also noted that no countries that have
implemented site blocking legislation have extended the operation of that
legislation to online search engine providers. Further, in countries with site
blocking legislation, search engine providers willingly and regularly cooperate
with rights holders to remove infringing material—without the need for special
In this regard, Google stated that:
According to the Motion Picture Association of Canada, there
are now at least 42 countries that have either adopted, implemented or are
legally obliged to adopt and implement, measures to ensure ISPs take steps to
disable access to copyright infringing websites. However, not one of
these countries has thought it necessary or desirable to extend ISP site
blocking to other online service providers such as search engines.
The department's submission observed that major online search engine
providers have acknowledged that they have an important role in copyright
enforcement, and that these providers are often active in disrupting
Further, copyright infringement involving online search engine providers is not
unique to Australia, and foreign jurisdictions have taken steps to address this
issue. In this regard, the submission noted that:
...the UK has brokered a code of practice, under which search
engine providers have agreed to undertake copyright enforcement efforts that
extend beyond what is contemplated in this Bill. The Department understands
from overseas counterparts that these copyright enforcement mechanisms have
The department further stated that the website blocking arrangements
under section 115A do not preclude or prevent voluntary measures to prevent
copyright infringement being entered into by relevant parties. The department
argued that, to the extent that voluntary measures are effective, it is
unlikely that a copyright owner would seek an injunction, particularly given
the potential delays and costs associated with doing so. The department
emphasised that section 115A provides an appropriate legislative 'backstop'
should voluntary arrangements prove ineffective.
Proposed subsection 115A(2B) seeks to allow the Federal Court to grant
injunctions in terms that would allow copyright holders, carriage service
providers and online search engine providers, by agreement, to extend an
injunction to domain names, URLs and IP addresses that start to provide access
to the infringing online location captured by the original injunction after
that injunction is made.
The bill's explanatory memorandum stated that these measures are
intended to respond to circumstances in which an online location seeks to avoid
an injunction under current section 115A by using another domain name, URL or
IP address which refers users to the same infringing content.
Submissions in support of the measures argued that they would be a
reasonable addition to the injunctive regime, and would likely provide the
flexibility necessary to ensure online locations are not able to circumvent
blocking orders merely by establishing new domain names, IP addresses and URLs.
In this regard, the ACC asserted that the measures are desirable, on the basis
that they will:
reduce some of the cost and unnecessary burden associated with
the injunctive process and borne by all parties involved;
reduce the pressures already placed on the Federal Court; and
introduce a desirable alternative to litigation, which is
consistent with the purposes of the safe harbour scheme in the Copyright Act.
Music Rights Australia and Australian Film and TV Bodies argued that the
measures are appropriately circumscribed, noting that the copyright holder
would bear the burden of establishing a nexus between any online location added
to an injunction by agreement and the location subject to the original order.
The submitters also emphasised that the Federal Court would retain supervisory
oversight over all site blocking orders, ensuring that online locations would
not be blocked without appropriate judicial scrutiny.
The joint submission by Australian Film and TV Bodies drew attention to
practices in comparable international jurisdictions, noting that:
The UK Intellectual Property Office is considering
introducing an administrative site blocking regime and other countries in the
European Union and in the Asia-Pacific region have already done so (e.g. Indonesia,
Korea, Portugal, Malaysia, and Thailand).
The ADA, Communications Alliance and Pirate Party of Australia opposed
the introduction of 'adaptive' injunctions. These submitters focussed on the
lack of judicial oversight, contending that the injunctions would require
copyright holders, carriage service providers and online search engine
providers to negotiate and determine matters that can, and should, only be
determined by a Court.
In this regard, the ADA argued that:
Due to the serious and extreme nature of the potential impact
of the scheme, it is essential that close judicial oversight be maintained to
ensure that websites are not erroneously blocked or blocked without clear
evidence of malicious infringement. Any amendments which imply that rights holders
will be given much greater latitude in determining which websites to block, or
that ISPs may be required to monitor the communications of their clients for
copyright purposes, should be avoided, to ensure the integrity not just of the
scheme but of the Australian legal system itself.
The ADA, Communications Alliance and Google argued that there is little,
if any, evidence to suggest that orders extending the application of an
injunction are slow or expensive to obtain.
In this respect, Google noted that the Federal Court in Foxtel Management
Pty Ltd v TPG Internet Pty Ltd & Ors stated that the Court may be
willing to act on very little in the way of additional evidence in the case of
a variation to injunction,
adding that in Roadshow Films Pty Ltd v Telstra Corporation Limited, the
Court made an order that:
....specifically addressed the issue that the...Bill is said to
address. Namely, the order provides a very simple and effective method for the
applicants to get site blocking orders in respect of websites that begin to
operate from a different Domain Name, IP Address or URL after the date of the
initial order. It is hard to conceive of a simpler process that maintained
proper oversight than the one formulated by his Honour Justice Nicholas.
The submitters also contended that the proposed 'adaptive' injunctions
could in fact place additional burden on rights holders, carriage service
providers and online service providers. In this respect, the ADA noted that:
Based on past experiences of negotiations between rights
holders and CSPs, it is likely that the...process would be costly, lengthy and
problematic, and arguably would be less efficient than a Court order,
particularly considering the established abridged process for expanding blocks.
The department's submission acknowledged concerns raised by stakeholders
that proposed subsection 115A(2B) would allow copyright owners to dictate steps
to carriage service providers and online search engine providers.
However, the department argued that this is not the case, stating that:
If the CSP or online search engine provider were not to agree
with the copyright holder about new domain names, URLs and IP addresses that
emerge after the injunction is made, the copyright holder would need to return
to the Court to seek an extended order. The new provisions intend to make clear
that the Federal Court may grant more responsive injunctions and reduce the
potential need for parties to return to the Court as new pathways to blocked
Ministerial power to exclude online
search engine providers
Proposed subsection 115A(8B) seeks to enable the minister, by
legislative instrument, to declare that online search engine providers, or
classes of such providers, be exempt from the injunctive scheme in section
A number of submissions raised concerns about the inclusion of this
power, noting that it provides an avenue for the amendments proposed by the
bill to be undermined. These submissions largely argued that the power was not
required, but may be acceptable if used only in the most extreme circumstances
and following extensive public consultation.
For example, Phonographic Performance Company of Australia stated that:
...the checks and balances within section 115A make such
declarations unnecessary, as the high evidentiary burden which Applicants carry
to satisfy the primary purpose or effect tests and the other factors which the
Court may consider before orders are made would prevent unintended consequences
in the application of section 115A to online search engine providers.
As outlined earlier, the Scrutiny of Bills Committee also raised
concerns regarding the breadth of the proposed power, and queried the minister
with respect to its necessity.
The committee is of the view that the amendments proposed by the bill
are likely to improve the operation of the injunctive scheme in section 115A of
the Copyright Act, and represent a measured and proportionate response to
concerns identified by stakeholders in relation to the operation of that
scheme. In this respect, the committee also notes that the majority of
submissions received by the committee supported the bill and recommended that
it be passed unamended.
The committee appreciates the concerns raised with respect to the scope
of the amendments, particularly those regarding the proposals to introduce a
'primary effect' test, extend the operation of the injunctive regime to search
engines, and allow the Federal Court to issue 'adaptive' injunctions. However,
the committee is of the view that there appear to be adequate safeguards in the
bill to ensure that the measures would not result in unintended and adverse
With respect to the proposed 'primary effect' test, the committee
acknowledges the concerns that the test may capture online locations operated
for legitimate purposes. However, the committee considers that there are
adequate safeguards in section 115A (including as amended) to ensure that this
would not occur in practice. In this regard, the committee also notes the
department's evidence regarding the anticipated operation of the 'primary
effect' test and applicable safeguards, as well as the assertion that the test
would be 'highly unlikely' to capture legitimate online locations.
The committee further notes that, as outlined above, a number of
submitters asserted that it is unnecessary to extend the injunctive regime to
online search engine providers. However, in light of the significant role that
these providers may play in both the infringement and enforcement of copyright,
the committee is of the view that the measure is appropriate. In this regard,
the committee notes the department's submission that while copyright holders
may seek to restrict access to infringing content by agreement with search engine
providers, the measures in the bill provide an important 'backstop' in the
event that voluntary arrangements are ineffective.
With respect to the proposal to permit 'adaptive' injunctions, the
committee acknowledges the concerns that the measure would require copyright
holders and service providers to determine matters that should be left to the
Court, as well as the concerns that these orders may be open to abuse. However,
the committee is of the view that the measures are appropriately circumscribed.
In particular, the committee notes the evidence that the Court would maintain
ultimate oversight over these injunctions, as well as the evidence that there
must a sufficient nexus between the online location covered by the original
injunction and the location to which the order is expanded.
The committee considers that, on balance, the benefits of the bill
outweigh any potential negative impacts that could arise from the proposed
amendments. The committee therefore recommends that the bill should be passed.
In light of the concerns raised in submissions, the committee considers
that there may be merit in conducting a review of the operation of the bill two
years after its enactment. The committee considers that this should provide
sufficient time to assess whether the concerns raised in submissions are borne
out in practice, and to identify any areas where the operation of the
injunctive regime in section 115A could be clarified, rationalised or improved.
Ministerial power to exclude online
search engine providers
As outlined above, a number of submissions raised concerns about the
proposal to allow the minister, by legislative instrument, to exempt online
search engine providers from the operation of the injunctive scheme in section
115A. The Scrutiny of Bills Committee was also concerned about the breadth of
the power and has sought a response from the minister about this matter. The
committee notes that senators will have an opportunity to consider the
minister's response once it is provided to the Scrutiny of Bills Committee.
The committee recommends that the government review the effectiveness of
the measures contained in the bill two years after its enactment.
The committee recommends that the Senate pass the bill.
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