By Anita Cade and Marlia Saunders -
Snapshot
- Online copyright infringement is an ongoing issue, as the internet allows users to easily share pirated content without permission or payment.
- As most infringing websites are operated from outside Australia, this has presented a challenge for copyright owners and, as a result, rights holders have attempted to obtain relief from ISPs or from individual infringers.
- The recent Federal Court decision in Roadshow Films Pty Ltd v Telstra Corporation Ltd; Foxtel Management Pty Limited v TPG Internet Pty Ltd [2016] FCA 1503, provides some progress for rights holders.
- The proceedings were commenced under s 115A of the Copyright Act 1968 (Cth), which enables copyright owners to seek a court order requiring an ISP to block access to overseas websites which have the ‘primary purpose’ of infringing copyright or facilitating the infringement of copyright.
Online copyright infringement has been a major issue in Australia – and the rest of the world – for almost two decades, as the internet has increasingly allowed users to quickly and easily share pirated content without permission or payment. In seeking a solution to this problem, the same issues keep arising about whether any proposed solution would actually be effective in practice, and who should bear the responsibility and cost of implementing the solution (as between content rights holders and Internet Service Providers (‘ISPs’)).
Over the years, we have seen this issue litigated in various contexts. Copyright owners had some early success in directly pursuing Australian-operated infringing websites (for example, in Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1, which was upheld on appeal), however copyright owners have generally faced challenges given that most infringing websites are operated from outside Australia. As a result, rights holders have instead attempted to obtain relief from ISPs or from individual infringers.
In Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42, the High Court found that the ISP, iiNet was not liable for authorising its users to infringe Roadshow’s copyright in circumstances where iiNet was on notice of the alleged infringements but did not take steps to prevent them from continuing. In the line of Dallas Buyers Club cases (culminating in Dallas Buyers Club LLC v iiNet Limited (No 5) [2015] FCA 1437), a movie rights holder sought preliminary discovery from ISPs of the account details of users who had allegedly infringed the film’s copyright. This was to enable the rights holder to pursue the users directly. These proceedings, were dismissed however when the rights holder sought to claim broader payments from the users than the Court would allow.
