Copyright Amendment (Online Infringement) Act 2015

The Copyright Amendment (Online Infringement) Act 2015 is an amending Act. It does not itself operate as a separate ongoing code for businesses to follow. Its main practical effect was to amend the Copyright Act 1968 by inserting section 115A, which deals with injunctions against carriage service providers providing access to online locations outside Australia.

That matters because the inserted provision gives the Federal Court of Australia power, on application by the owner of a copyright, to order a carriage service provider to take reasonable steps to disable access to an online location outside Australia in defined circumstances. This is a targeted remedy aimed at certain offshore online infringement problems. It is not a general rule for every website, every online dispute or every business using the internet.

The Act itself is short. It contains the short title, commencement and a schedule of amendments. The practical content sits in Schedule 1, which inserted section 115A into the Copyright Act 1968 and made related amendments to other provisions.

That distinction is important for business readers. This Act was the vehicle for changing the Copyright Act 1968. It is not the place where businesses will usually find the ongoing operative rule they need to apply in a current dispute. If you are considering legal action, responding to an application or checking the current law, you should look at the current consolidated Copyright Act 1968 as amended.

The inserted section 115A creates a court-based mechanism. It allows the Federal Court of Australia, on application by the owner of a copyright, to grant an injunction if the Court is satisfied of the statutory threshold. The injunction requires the carriage service provider to take reasonable steps to disable access to the online location.

The inserted provision is aimed at a defined group of participants. The applicant is the owner of a copyright. The respondent is a carriage service provider that provides access to an online location outside Australia. The operator of the online location is not automatically a party, but may become a party if that person applies to be joined to the proceedings.

This structure matters because the remedy is not framed simply as a direct claim against the offshore operator. Instead, it is a mechanism for seeking an order against the provider that gives access to the online location. That is why carriage service providers need to understand the process even though they may not be the alleged primary wrongdoer.

Many businesses will not have direct obligations under this amendment. A local service business, retailer or professional practice will usually not need to do anything under this Act unless it owns copyright affected by offshore infringement or it falls within the carriage service provider framework. By contrast, digital content businesses, software businesses, publishers and media businesses may see this as part of their enforcement toolkit.

Businesses operating online services should also read the provision carefully if their service design includes directories, indexes or categories that could become relevant in a copyright dispute. The text does not say those features are automatically unlawful, but it does expressly identify them as matters the Court may take into account when deciding whether to grant an injunction.

The threshold in section 115A is specific. The Federal Court of Australia may grant the injunction if it is satisfied that a carriage service provider provides access to an online location outside Australia, that the online location infringes or facilitates an infringement of the copyright, and that the primary purpose of the online location is to infringe or facilitate the infringement of copyright, whether or not in Australia.

The primary purpose requirement is a major limiting feature. It means the provision is directed at online locations whose main purpose is infringement or facilitating infringement. On the face of the text, it is not aimed at every service where infringement may happen incidentally, occasionally or as a side effect of a broader legitimate purpose.

For businesses considering whether the provision may be relevant, the practical questions are straightforward. Is the target an online location outside Australia? Is there infringement or facilitation of infringement? Does the available evidence suggest that infringement or facilitation is the primary purpose of that online location? Is the respondent a carriage service provider that provides access to it? If the answer to any of those questions is uncertain, the case for an order may be weaker and legal advice becomes more important.

The legislation does not say that the Court must grant an injunction whenever the threshold is alleged. It lists matters the Court may take into account in deciding whether to grant the injunction. These factors are useful because they show how the Court may assess the seriousness of the conduct, the design and operation of the online location, and the practical effect of the proposed order.

The listed matters include the flagrancy of the infringement or facilitation, whether the online location makes available or contains directories, indexes or categories of the means to infringe or facilitate infringement, whether the owner or operator demonstrates a disregard for copyright generally, whether access has been disabled by foreign court orders on copyright-related grounds, whether disabling access is a proportionate response, the impact on affected persons, whether the order is in the public interest, whether the copyright owner complied with the notice requirement, any other remedies available under the Act, any prescribed matter, and any other relevant matter.

For businesses, these factors show that the process is not purely technical. The Court can consider proportionality, impact and public interest, as well as the conduct and design of the online location. Features such as directories, indexes or categories are not automatically unlawful under this text, but they are expressly identified as matters the Court may consider.

The legislation is clear about parties and notice. The parties to an action under subsection 115A(1) are the owner of the copyright, the carriage service provider, and the person who operates the online location if, but only if, that person applies to be joined as a party to the proceedings.

The copyright owner must notify both the carriage service provider and the person who operates the online location of the making of the application. This is an important procedural step. The Court may dispense with notice to the operator, but only on a specific basis. It must be satisfied that, despite reasonable efforts, the copyright owner is unable to determine the identity or address of the operator, or is unable to send notices to that person.

That means a business should not assume that notice to the operator can be skipped merely because the operator is offshore or difficult to deal with. The text requires reasonable efforts. If your business is preparing an application, keep records of the steps taken to identify and contact the operator. If your business receives notice as a provider or operator, treat it as a formal legal matter and respond promptly.

If the Court grants the injunction, the order is to require the carriage service provider to take reasonable steps to disable access to the online location. The text does not prescribe one universal technical method in the extract available here, so businesses should avoid assuming that the law mandates a single fixed implementation method in every case.

It is also important to understand what this amendment does not do. It does not create a general damages regime in the amending Act itself. It does not make every business responsible for policing the internet. It does not automatically make the operator of the online location a party. And it does not give State or Territory Supreme Courts jurisdiction over section 115A applications.

The amendment also made clear that, despite subsection 39(2) of the Judiciary Act 1903, the Supreme Court of a State or Territory does not have jurisdiction in relation to applications under section 115A. In practical terms, this is a Federal Court process and should be treated as such from the start.

The costs rule is commercially important for carriage service providers. The legislation says the carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings. That does not answer every costs question, but it is a clear statutory point that businesses should factor into their response strategy.

The Court may also limit the duration of an injunction. In addition, the Court may, on application, rescind or vary an injunction granted under section 115A. An application to rescind or vary may be made by any of the persons referred to in the parties provision, or by any other person prescribed by the regulations.

For businesses, this means an order is not necessarily fixed forever. If circumstances change, such as changes to the online location, access arrangements or the practical effect of the order, there may be scope to seek variation or rescission. Good record keeping will matter if that becomes necessary.

If your business creates or licenses films, music, software, written content, images, courses or other digital assets, this amendment may be relevant as part of your enforcement strategy where an offshore online location appears to be built mainly for infringement or facilitating infringement. Before relying on it, you would usually want to confirm copyright ownership, identify the online location, gather evidence of infringement or facilitation, and document your efforts to identify and notify the operator.

If your business is a carriage service provider, your practical focus is different. You should have a process for receiving legal notices, escalating them internally and preserving relevant records. The legislation does not make providers automatically liable for costs unless they enter an appearance and take part, but the decision about whether and how to participate should be made carefully.

If your business operates an online platform, search function or categorised content service, the text is worth reading because the Court may take into account whether an online location makes available or contains directories, indexes or categories of the means to infringe or facilitate infringement. That does not mean every directory or index is unlawful. It does mean those features can be relevant in the Court's assessment.

Many businesses should also keep the scope of the law in perspective. This is not a general compliance regime for all businesses with a website or internet connection. It is a targeted Federal Court remedy for a specific copyright problem involving access to online locations outside Australia.

Before relying on this page, check the current consolidated Copyright Act 1968, confirm whether section 115A has been amended since this Act commenced, and get advice if you are dealing with a live dispute or Federal Court application.

Businesses often assume this law created a broad new online compliance regime. It did not. The Act amended the Copyright Act 1968 to create a specific injunction process aimed at certain offshore online locations. That is why the first question should usually be whether your business is actually within the narrow group affected by the provision.

The most common practical questions are who can apply, whether the target must be outside Australia, whether the operator must be notified, what the Court can order, whether providers face costs exposure, and whether orders can later be varied or rescinded. The answers to those questions are set out in the legislation and summarised on this page, but businesses dealing with a live matter should still check the current consolidated Copyright Act 1968.

The Act was assented to on 26 June 2015. It commenced on the day after receiving Royal Assent. Public register information identifies it as in force.

Because this is an amending Act, the practical rule businesses usually need now sits in the Copyright Act 1968 as amended. That is the version you should check before relying on the law for current action.