Court orders ISPs to block access to online pirate’s websites

19 December 2016
Antoine Pace, Partner, Melbourne

A Federal Court decision may provide a breakthrough in the push to curb online copyright infringement in Australia through overseas websites.

In recent years, Australia has the earned an unenviable reputation as having one of the highest incidences of online copyright infringement in the world, by accessing pirate sites and the creation of Virtual Private Networks or VPNs, which enable users to upload and download infringing content virtually undetected.

The decision in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 on 15 December 2016 requires Australian internet service providers (ISPs) to block access to an overseas website, which facilitates copyright infringement, and direct users to a web page to be created by movie studios (rights owners).

The decision provides guidance on resolving future online copyright infringement matters after many years of uncertainty, despite legislative reforms and efforts by the rights owners and ISPs to find a constructive solution.

Section 115A of the Copyright Act 1968, introduced in 2015, allows rights owners to apply for injunctive relief in the Federal Court, and require ISPs to restrict access to infringing domain names located outside Australia. Rights owners and ISPs also responded to calls from the Federal Government to develop an industry code including a Copyright Notice Scheme however the code has not been ratified.

The Court ordered a cohort of 50 ISPs, including fixed line and mobile carriers, to disable access to domain names which the rights holders established were either infringing or facilitating infringement of copyright.  Internet users seeking to access the infringing sites will be redirected to another webpage, created by rights owners, which will explain why access to the infringing website has been disabled. Under the orders, the movie studios will pay the IPs $50 for each IP address which is blocked.

This decision follows the 2015 case of Dallas Buyers Club LLC v iiNet Limited (No 3) 2015 FCA 422 which provided the film’s producers with an avenue to serve copyright infringement notices directly to individuals suspected of unlawfully accessing copyright content.  However, despite the Court ruling in its favour, the plaintiff eventually abandoned the case after the Court imposed strict conditions, including a financial surety, to ensure the movie producers complied with privacy obligations and avoided the practice of speculative invoicing.

In the digital age, in which the world appears to be getting smaller and instant global communication is the norm, some rights owners have arguably been too slow to respond to consumer expectations and market demands in providing access to copyright material.  However between 2015 and 2016, the increased accessibility to legitimate content, including the uptake of internet streaming services (such as Netflix and Stan), and the price adjustment of subscription TV has contributed to an estimated 3% reduction in unlawful access of online content in Australia.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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