On 26 March 2015, the Hon Malcolm Turnbull MP, Minister for Communications,
introduced the Copyright Amendment (Online Infringement) Bill 2015 (the Bill)
into the House of Representatives.
On the same day, pursuant to a report of the Senate Standing Committee
for Selection of Bills, the Senate referred the provisions of the Bill to the
Legal and Constitutional Affairs Legislation Committee (the committee) for
inquiry and report by 13 May 2015.
On 12 May 2015, the Senate granted an extension of time for reporting until 29 May
On 29 May 2015, in its interim report, the committee advised the Senate
that it intended to present its final report by 9 June 2015. On 9
June 2015, in a second interim report, the committee advised the Senate that it
intended to present its final report by 11 June 2015 
Conduct of the inquiry
In accordance with usual practice the committee wrote to a number of persons
and organisations, inviting submissions to the inquiry by 16 April 2015.
Details of the inquiry were also made available through the committee's website
The committee received 49 submissions in response to this inquiry. The
submissions are listed at Appendix 1 to this report and are available on the
committee's webpage. The committee held a single-day public hearing for its
inquiry on 1 May 2015. The names of witnesses who attended the hearing are
listed in Appendix 2. The committee would like to thank all those who submitted,
gave evidence and assisted with its inquiry.
Background to the Bill
On 30 July 2014, the Attorney-General, Senator the Hon George Brandis QC,
and Mr Turnbull jointly released a discussion paper on the establishment of a
legal framework to address online copyright infringement (discussion paper).
The ministers emphasised the importance of the role of interested industries in
this area, saying that:
...in the dynamic environment of the digital economy, the
Government believes that workable approaches to tackling online copyright
infringement are most likely to come from the market. The role of the
Government in this context is to provide a legal framework that facilitates
The government's consultation process received more than 100
submissions. Mr Turnbull advised Parliament that these submissions were taken
into account in the drafting of the Bill. For example, as a result of the
consultations, the proposed legislative scheme 'was modified to give more
flexibility to courts in determining whether to order an injunction to capture
future infringing technologies and to provide more safeguards for carriage
service providers, operators, online locations and internet users'.
Mr Turnbull stated that similar provisions have been 'working well in other
parts of the world such as the United Kingdom, Ireland and Singapore'.
Purpose of the Bill
The Explanatory Memorandum to the Bill notes that:
The purpose of this Bill is to introduce a key reform to
reduce online copyright infringement. The scheme is deliberately prescriptive;
it is intended as a precise response to a specific concern raised by copyright
The Bill would provide for a copyright owner to apply to the Federal
Court of Australia (Court) for an injunction requiring carriage service
providers (CSPs) to block access to foreign websites which have the primary
purpose of infringing, or facilitating the infringement, of copyright. In doing
so the Bill:
...acknowledges the difficulties in taking direct enforcement
action against entities operating outside Australia. The proposed amendments
are intended to create a no-fault remedy against CSPs where they are in a
position to address copyright infringement.
In his Second Reading Speech to the House of Representatives on the
Bill, Mr Turnbull stated that:
Copyright protection provides an essential mechanism for
ensuring the viability and success of creative industries by providing an
incentive for and a reward to creators...in combating online copyright
infringement the most powerful weapon that rights holders have is to provide
access to their content in a timely and affordable way. The government accepts
that this is an important element in any package of measures to address online
copyright infringement...The bill complements these objectives by ensuring there
is fair protection of the rights of content creators while balancing other
competing interests in the online environment. This will be achieved by
ensuring copyright holders have access to an effective remedy without unduly
burdening carriage service providers or unnecessarily regulating the behaviour
Key provisions of the Bill
The Bill proposes amendments to the Copyright Act 1968 (Cth) (the
Act). The substantive amendments to the Act are set out in Schedule 1 to the Bill.
The key amendment would be the insertion of a new section 115A into the Act.
Proposed subsection 115A(1) would provide that the Federal Court of
Australia may, on application by the owner of a copyright, grant an injunction (under
proposed subsection 115A(2)) which would require a CSP to take reasonable steps
to disable access to a specified online location.
The Court would be empowered to grant such an injunction if it were satisfied
- the CSP provides access to an online location outside Australia;
- the online location infringes, or facilitates an infringement of, the
- the primary purpose of the online location is to infringe or facilitate the
infringement of copyright (whether or not in Australia).
Item 2 of Schedule 1 to the Bill would ensure that exclusive licensees would
enjoy the same rights as copyright owners to bring an action under proposed section 115A.
The same provision would also provide that where concurrent rights exist, all joint
owners and/or licensees would need to be added to any relevant proceedings.
Proposed subsection 115A(5) sets out the criteria that the Court would
need to take into account in a determination of whether to grant an injunction.
This would include:
the flagrancy of the infringement or facilitation of infringement
whether the online location makes available or contains
directories, indexes or categories of the means to infringe, or facilitate an
infringement of, copyright;
whether the owner or operator of the online location
'demonstrates a disregard for copyright generally';
whether access to the online location has been disabled by court
orders of other countries or territories on copyright infringement or related
whether disabling access to the online location is a
proportionate response in the circumstances;
the likely impact of granting the injunction on any person or
class of persons;
whether it is in the public interest to disable access to the
whether the copyright owner has given the notifications required under
subsection 115A(4) (see below); and
any other remedies available under the Act, other matters
prescribed by regulations under the Act, or any other relevant matter.
The parties to the relevant action would be the copyright owner and the CSP
under proposed subsection 115A(3). The person who operates the online location
would also be a party, but only if that person were to make an application to
be joined as a party to the proceedings.
Proposed subsection 115A(4) would require the copyright owner to notify
the CSP and the person who operates the online location that an application was
made. However, the Court could dispense with the requirement to notify the
online operator if the Court were satisfied that the copyright owner made
reasonable efforts to notify the operator but was unable to contact the
operator or to determine the operator's identity or address.
Proposed subsection 115A(7) would empower the Court to limit the
duration of an injunction, or upon application, to rescind or vary an
injunction. Proposed subsection 115A(8) would provide that an application to
rescind or vary an injunction could be made by the copyright owner, the CSP,
the operator of the online location, or any other person prescribed by
Finally, proposed subsection 115A(9) would provide that the CSP would
not be liable for any costs of court proceedings unless it chose to appear and
take part in the proceedings.
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