Late last year, the film industry in Australia won its first legal battle against piracy and unauthorised downloading practices since the amendment of the Copyright Act in June 2015.
As a result of the Federal Court’s judgment in Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503, largely used websites such as Torrentz, TorrentHound, IsoHunt and streaming service SolarMovie, will be shut down, and stopped from allowing users to download media content without infringing third parties’ rights. Australian users will therefore, be prevented from downloading music, watching the latest released movie or famous TV series and shows from these websites.
The decision provides some insights to the wording of the Act, and what are the obligations imposed on the affected parties.
The blocking power
Under Section 115A of the Copyright Amendment (Online Infringement) Act 2015, the Federal Court is vested with the power to raise an injunction ordering Internet Service Providers (ISPs) such as Optus or Telstra to take the necessary steps to disable (by blocking or re-routing) websites infringing third party’s copyright. The decision provided some clarity to the applicable criteria when determining whether an injunction is to be granted.
Firstly, the Court applied a test of substance (rather than of form), to determine whether a website infringes copyright. As a result, the Court analysed the purpose for the creation and use of the website. If a website was established to give access to consumers to free (or paid) content and it is currently providing such service, it would be subject to a blockage if such access is given without authorisation.
Secondly, the judgement indicated that the website does not necessarily need to be infringing third parties’ rights at the exact moment when the injunction is being made. This means that if the website was continuously active at the time the proceedings were entered, it would be subject to the remedy sought as long as the website was not taken down on a permanent basis. This approach is directed to prevent infringers from escaping injunctions by using technological tools such as temporarily hiding the webpage.
Finally, the decision enforces Section 115A(9) by ordering the applicant, Roadshow Films (Roadshow), to bear the costs of the services providers to block any access to the infringing websites. In this case, they were ordered to pay Telstra, Optus, M2 and TPG $50 per domain name to be disabled, and to pay the costs and fees for the proceedings. The rationale behind this order not only follows the norm but also imposes the economic responsibility on the Roadshow Films who are the ones benefited with the legal remedy sought.
Sharing the tasks
The obligations imposed by the Court’s orders are divided between Roadshow and the ISP’s. On the one hand, the ISP’s are required to take all the necessary steps and measures towards disabling access to the infringing websites within a certain time. This encompasses removing access from its content and to re-direct people to another website. On the other hand, Roadshow is required to establish and maintain (bearing all costs related to it) a webpage informing users that the former one infringed copyright, were subject to a judicial decision and as a result, all the contents have been removed.
In the battle against intellectual property piracy, the Federal Court has been given the opportunity to apply the Act and to give relief to the entertainment industry. This judgment probably constitutes the first of many future decisions against infringers, but clearly constitutes a benchmark decision.