Following the decision in Roadshow Films Pty Ltd v Telstra Corporation Ltd  FCA 1503 (Roadshow Films), major Australian internet service providers (ISPs) must now take reasonable steps to disable access to the Websites, which were held to infringe or facilitate the infringement of copyright. Although the power to compel ISPs to block certain websites has been around since amendments to the Copyright Act in 2015, this it is the first time that the new laws have been used in Australia.
The Federal Court noted that the test for determining the purpose of a website is one of substance rather than form. In determining whether a website’s primary purpose is copyright infringement, Courts will look both to the purpose for which the website was created as well as the purpose for which it is actually used.
The Court also clarified that the use of the present tense in s 155A does not mean that a website must be online and presently infringing copyright at the time the injunction is made; it is sufficient that the website was online at the time the proceedings were commenced and that it has not been taken down permanently. This approach prevents operators from being able to avoid injunctions simply by taking the website offline temporarily while the proceedings are before the court.
The respondents to the proceedings (major Australian ISPs including Telstra, Optus, M2 and TPG) argued that because there is no allegation of any wrongdoing on their part and because they are essentially assisting the applicants (Roadshow Films, Foxtel, and other copyright owners) to protect their copyright, they should not have to pay the costs of blocking websites found to fall within the scope of s 115A. The Federal Court agreed and ordered that the applicants to pay the respondents $50 per domain name that they are required to block as a result of the injunctions granted.
As is so often the way however, the decision is unlikely to mean the end of illegal downloading in Australia for a number of reasons:
For further information or assistance with your own intellectual property law and technology matters please contact Jimmy Gill.