Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

COPYRIGHT AMENDMENT (ONLINE INFRINGEMENT) BILL 2015

                          2013-2014-2015




 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                 HOUSE OF REPRESENTATIVES




COPYRIGHT AMENDMENT (ONLINE INFRINGEMENT) BILL 2015




     SUPPLEMENTARY EXPLANATORY MEMORANDUM


       Amendments to be Moved on Behalf of the Government




                   (Circulated by authority of the

    Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE COPYRIGHT AMENDMENT (ONLINE
INFRINGEMENT) BILL 2015

(Government)

OUTLINE

The purpose of these amendments to the Copyright Amendment (Online Infringement) Bill
2015 ('the Bill') and the Explanatory Memorandum to the Bill is to address the
recommendations of the Senate Legal and Constitutional Affairs Legislation Committee ('the
Committee') in its report of 11 June 2015. These amendments will ensure that the Bill
introduces a workable, effective and flexible framework for achieving its objective of
reducing online copyright infringement and provide further clarity on the operation of the Bill
in the Explanatory Memorandum.

In summary, the amendment to the Bill will provide the Federal Court with more flexibility
and discretion as to what factors to consider and the weight to place on such factors. The
amendments to the Explanatory Memorandum will provide further clarity on the following
matters:

       the ability of the Court to require parties to use a 'landing page' informing internet
       users of the terms of a court order, and
       the costs and liability of a Carriage Service Provider (CSP) in complying with a court
       order.

FINANCIAL IMPACT STATEMENT

The proposed amendments will not have a financial impact.




                                                                                             2
AMENDMENT TO THE COPYRIGHT AMENDMENT (ONLINE INFRINGEMENT)
BILL 2015

NOTES ON AMENDMENT

Amendment (1):         Discretion of Court

1.      This amendment removes the requirement in proposed subsection 115A(5), inserted
by Schedule 1, Item 1 of the Bill that the Federal Court 'is to' take into account specified
factors in determining whether to grant the injunction and provides that the Court 'may' take
these factors into account. This ensures that the Federal Court has discretion as to which
factors to consider as well as the appropriate weight to place on each factor that it takes into
account. This also removes the unnecessarily burdensome requirement for parties to tender
evidence in relation to each of these factors and for the Federal Court to take into account
each of these factors in every case.


AMENDMENTS TO THE EXPLANATORY MEMORANDUM TO THE
COPYRIGHT AMENDMENT (ONLINE INFRINGEMENT) BILL 2015

Amendment (1):         Primary purpose

2.      This amendment refers to the comments made in paragraphs 38 and 39 of the
Explanatory Memorandum in relation to proposed subsection 115A(1), inserted by
Schedule 1, Item 1 of the Bill. These paragraphs provide clarity and guidance on the scope of
the 'primary purpose' test in proposed paragraph 115A(1)(c). In addition, an online location
may have the 'primary purpose' of infringing, or facilitating the infringement of copyright
even if the operator of the location derives a commercial advantage or profit from the
operation of the location.

Amendment (2):         Landing page

3.      This amendment refers to the comments made in paragraphs 40 and 41 of the
Explanatory Memorandum in relation to proposed subsection 115A(2), inserted by
Schedule 1, Item 1 of the Bill. At paragraph 41, the Explanatory Memorandum noted that
consistent with section 23 of the Federal Court Act 1976, the Court would be able to make
appropriate orders in granting an injunction and details some examples of possible orders.
An additional example that should be noted there is that the Court would have the power to
order that the parties establish a 'landing page' at the disabled online location where internet
users who attempted to access the disabled online location would be diverted. This landing
page would state that the online location has been disabled in accordance with a Federal
Court order and detail the terms of that order. The purpose of a landing page would be to
ensure that subscribers are informed of the reason that they are unable to access a disabled
online location, avoiding the need to contact their CSP for information.




                                                                                                   3
Amendment (3):         Costs and liabilities of CSPs

4.      This amendment refers to the comments made in paragraph 59 of the Explanatory
Memorandum in relation to proposed subsection 115A(9), inserted by Schedule 1, Item 1 of
the Bill. Proposed subsection 115A(9) would apply in circumstances where a CSP had
chosen not to appear and contest an application. It is intended to ensure that a party will not
be penalised and required to bear unnecessary costs where it is fully cooperating, or not
frustrating proceedings. As to the costs of implementing the order, it would be open to a
court to give appropriate directions on that issue.

5.      Proposed section 115A is not intended to expose CSPs to legal actions by subscribers
as a result of acts done or omitted in compliance with an order. The reasoning of Justice
Perram in Dallas Buyers Club LLC v iiNet (No 3) [2015] FCA 422 at [20] indicates that
service providers acting in compliance with a Federal Court order will not be liable to actions
from subscribers for doing so.




                                                                                                  4