Countering Copycats: Examining Australia’s Copyright Amendment (Online Infringement) Bill 2018

With the growth of the Internet, it is easier to share one’s opinions, pictures and ideas online. However, sometimes it is not one’s own opinions, pictures are ideas that are being shared.

Online intellectual property infringement is a major concern. Frequently, it is tricky to use intellectual property legislation to fight online IP infringement. Such infringement might be occurring overseas and territoriality constrains intellectual property legislation. With this in mind, various jurisdictions have amended intellectual property legislation to combat such infringement. One recent example is Australia’s proposed Copyright Amendment (Online Infringement) Bill 2018.

The proposed amendment would permit copyright holders to seek injunctions against search engine providers that carry infringing websites, permit injunctions against websites who have the “primary purpose” or “primary effect” of “facilitating the infringement” or “infringing” a copyright and includes a “rebuttable presumption” that websites are located outside Australia. In short, copyright holders can require search engines to remove infringing websites.

What is particularly interesting is while attempting to bolster copyright laws, the Copyright Amendment (Online Infringement) Bill 2018 still grants the courts significant leeway in choosing whether or not to grant an injunction. Critics frequently blast laws that address online intellectual property infringement as threatening freedom of expression and the free-flow of ideas. The proposed amendment seeks to soothe this fear by including factors that the Federal Court can consider in deciding to grant an injunction, and explicitly mentioning the importance of freedom of expression within the amendment. Some considerations include the “flagrancy of the infringement”, “the percentage of the infringing content” to “legitimate content”, the “public interest” and “the impact on any persons likely to be affected by the grant of an injunction.”

Additionally interesting, is the differing approach Australia has taken to Canada, a fellow common law country. Article 31.1(1) of the Canadian Copyright Act states that a “person” who provides a “digital network” or “Internet services” that provides the means for “reproducing” or communicating a “work” does not “solely by reason of providing these services” infringe copyright. This highlights how ad-hoc intellectual property policies can be even in relatively similar jurisdictions.

While this legislation has not yet passed, it will be interesting to see its impact on the Australian copyright landscape.

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