Australia’s website-blocking regime under review

The government is conducting a review of Australia’s anti-piracy website blocking regime 18 months after it came into effect.

The Department of Communications and the Arts is staging a public consultation on the site-blocking mechanism introduced by the Copyright Amendment (Online Infringement) Act 2015.

Under the changes to copyright law introduced by the legislation, copyright owners and licensees are able to apply for a Federal Court injunction that requires an Internet service provider to take reasonable steps to block its subscribers’ access to piracy-linked websites.

The sites targeted by such an injunction must be based overseas and have the primary purpose of infringing copyright or facilitating the infringement of copyright.

The court can take into consideration a number of other factors when deciding whether to grant an injunction, such as the flagrancy of infringement, whether blocking a site is in the public interest, the impact of the injunction, and whether a site-block is a proportionate response to the infringement.

Since the legislation came into effect, a number of rights holders have employed the site-blocking mechanism. Roadshow and Foxtel led the charge, successfully applying to have a number of major piracy-linked online services blocked.

Since then the pair have successfully sought additional injunctions. Australian music labels have also used the legislation.

There are currently two applications for site-blocks before the Federal Court. Roadshow and Hong Kong broadcaster TVB are seeking to block online services used by a number of Android-based set-top boxes.

(Previous injunctions obtained by rights holders have targeted online services that link to BitTorrent files, piracy-linked search engines, and web-based streaming sites.)

A discussion paper released by the Department of Communications and the Arts as part of the public consultation says that case law and survey data “suggests the Online Infringement Amendment has enabled copyright owners to work with CSPs [carriage service providers] to reduce large-scale online copyright infringement”.

“So far, it appears that copyright owners and CSPs find the current arrangement acceptable, clear and effective,” the paper states.

The paper seeks views on the efficiency and effectiveness of the site-blocking legislation, whether the application and injunction process is working well and suggestions for possible amendments to the regime.

The department has set a deadline of 16 March for submissions in response to the discussion paper.