Copyright Amendment (Online Infringement) Act 2018

The Copyright Amendment (Online Infringement) Act 2018 is an amending Act. Its title and Schedule make clear that it amends the Copyright Act 1968, and does so for related purposes. That matters because businesses should not read this Act in isolation as if it were a complete set of operative rules. The practical rules sit in the amended Copyright Act 1968, especially section 115A.

The main change is to the court-based regime for injunctions relating to online locations outside Australia. Under the amended section 115A, the owner of a copyright may apply to the Federal Court of Australia for an injunction requiring a carriage service provider to take steps the Court considers reasonable to disable access to an online location outside Australia. The online location must infringe, or facilitate an infringement, of the copyright, and it must have the primary purpose or the primary effect of infringing, or facilitating infringement, of copyright.

The amendments also expand the regime beyond carriage service providers. An application may also request that an online search engine provider take reasonable steps so as not to provide a search result that refers users to the online location, unless that provider is covered by a ministerial declaration. This means the regime can address both access pathways and search visibility.

The amended regime directly concerns three main groups. First, copyright owners, because they are the parties who may apply for an injunction. Secondly, carriage service providers, because the Court may order them to take reasonable steps to disable access to an online location outside Australia. Thirdly, online search engine providers, because the application may also seek orders requiring them not to provide search results that refer users to the online location.

Businesses that create, license or distribute digital content are often the most commercially affected. That includes software businesses, publishers, streaming services, education providers, media businesses and creative agencies. If offshore piracy is diverting users, subscriptions, advertising revenue or licence value, the amended section 115A may become part of the business's enforcement strategy.

Many ordinary businesses will be outside the direct operation of the regime. A local retailer, hospitality business or trades business with no copyright enforcement issue and no role as a carriage service provider or online search engine provider will usually not need to take action under this Act. Even so, businesses with online content or searchable platforms should understand the broad shape of the regime in case they become affected later.

The starting point is an application by the owner of a copyright to the Federal Court of Australia. The target must be an online location outside Australia. The legislation then sets two linked thresholds. First, the online location must infringe, or facilitate an infringement, of the copyright. Secondly, the online location must have the primary purpose or the primary effect of infringing, or facilitating infringement, of copyright, whether or not in Australia.

That wording is important for businesses. The regime is not limited to a site that directly hosts infringing copies. It can also reach an online location that facilitates infringement. At the same time, the primary purpose or primary effect threshold means not every site with some problematic material will qualify. The focus is on whether infringement or facilitation of infringement is central to the online location.

The Court may grant the injunction in the terms, and subject to the conditions, that the Court considers appropriate. Without limiting that power, the injunction may require a carriage service provider to block specified domain names, URLs and IP addresses that provide access to the online location. It may also extend to later domain names, URLs and IP addresses that the carriage service provider and the copyright owner agree in writing have started to provide access to the online location after the injunction is made.

The same structure applies to online search engine providers. The injunction may require them not to provide search results that include specified domain names, URLs and IP addresses, and may also cover later access points that the provider and the copyright owner agree in writing have started to provide access to the online location after the injunction is made.

One of the most significant 2018 changes is the express inclusion of online search engine providers. If the application also seeks for the injunction to apply against an online search engine provider, the legislation adds specific matters the Court may take into account when deciding whether to grant the injunction.

Those added matters include whether not providing search results that refer users to the online location is a proportionate response in the circumstances, and whether it is in the public interest not to provide those search results. For businesses, this means search-result relief is not just a technical add-on. It requires attention to proportionality and public interest from the start.

The Act also updates related procedural references so that, where relevant, the online search engine provider is brought into the application and court process. This reinforces that search engine orders are part of the same court-supervised framework, not a separate administrative process.

If your business is considering this pathway, the practical question is not only whether the target online location meets the infringement test, but also whether the proposed search-result restriction is appropriately targeted. If your business is responding to an application as a provider, you should review the proposed steps carefully and assess whether they are technically and operationally reasonable in the terms sought.

The amendments insert a presumption that, for the purposes of the proceedings, the online location is presumed to be outside Australia unless the contrary is established. This is a practical evidentiary rule. It may reduce the need to prove the location in detail at the outset, but it is only a presumption and can be displaced if the contrary is established.

The amendments also create a declaration mechanism for online search engine providers. The Minister may, by legislative instrument, declare that a particular online search engine provider, or an online search engine provider that is a member of a particular class, must not be specified in an application under subsection 115A(1) or in an application to vary an injunction under subsection 115A(7).

The Act also says an application to vary an injunction must not request the Court to vary the injunction so that it applies to an online search engine provider covered by such a declaration. For businesses, this is a threshold check. Before naming an online search engine provider in an application, or seeking to add one later through variation, you should confirm whether any current declaration applies.

The Act received Royal Assent on 10 December 2018 and, under its commencement table, the whole Act commenced on the day after Royal Assent, being 11 December 2018.

The application provision in Schedule 1 is also important. It says the amendments apply to applications under section 115A of the Copyright Act 1968 that are made on and after commencement of the Schedule for either of two purposes. First, they apply to applications for the making of an injunction under section 115A after commencement. Secondly, they apply to applications for varying or rescinding an injunction made under section 115A, whether that injunction was made before or after commencement.

For businesses, the practical point is that the amendments are tied to when the application is made, not simply when the underlying conduct started. If you are assessing whether the amended regime applies to a proposed application or to a variation of an existing injunction, the date of the application matters and should be checked carefully.

If your business is considering an application, or responding to one, the legislation points to several practical checks. A copyright owner should be clear about ownership of the copyright, the online location being targeted, and the domain names, URLs and IP addresses that provide access to that location. If the online location keeps changing access points, the written agreement mechanism for later domain names, URLs and IP addresses may become important.

If search-result relief is being considered, the business should also assess whether the proposed restriction is proportionate and whether there are public interest issues likely to be raised. If your business is a carriage service provider or online search engine provider, you should review the exact steps sought and whether they are reasonable in technical and operational terms.

Because this Act amends the Copyright Act 1968 rather than operating alone, businesses should always check the current consolidated Copyright Act 1968 before acting. They should also check whether any ministerial declaration excludes a particular online search engine provider or class of providers from being specified.

A common point of confusion is whether this Act itself tells a business everything it needs to do. It does not. This Act changes the Copyright Act 1968, so the operative rules are found in the amended section 115A and related provisions of the consolidated Act.

Another common question is whether the amendments automatically apply to all older injunctions and disputes. The legislation is more specific than that. It applies to section 115A applications made on and after commencement, including applications to vary or rescind injunctions, even where the injunction being varied or rescinded was made before commencement.

Businesses also often ask whether search engine providers can always be named. The answer is no. The legislation gives the Minister a power to exclude a particular provider or a class of providers by legislative instrument. That means a business should check the current position before assuming search-result orders are available against a particular provider.

Finally, businesses sometimes assume this regime is only relevant where a site directly hosts infringing files. The wording is broader than that. It can also apply where an online location facilitates infringement, provided the primary purpose or primary effect threshold is met.