The Federal Government recently passed the Copyright Amendment (Online Infringement) Bill 2015 which, unsurprisingly deals with copyright violations on the internet. Click HERE for the wording of the Bill and HERE for the explanatory memorandum.
The intent with this new amendment is to combat the problem of overseas online copyright infringement, emphasis on the overseas aspect. This issues has been plaguing copyright law for years because as one would expect the overseas nature presents two main problems:
- Jurisdictional limits, and
- Excessive costs..
There are limitations on Australia’s jurisdiction overseas which hamper its ability to enforce any domestic orders; and even if those can be overcome, the expense associated with tracking down such infringing activity has been too high in the past. Consequently, overseas copyright pirates have been effectively free to do as they wish.
How does the amendment deal with these issues? By firstly acknowledging that those are the hurdles before it (as stated in explanatory memorandum). The jurisdictional obstacle is navigated but using no fault injunctions against CSP’s a stand-alone remedy that would not affect existing laws. Nor would it carry any presumptions that the CSP infringed copyright and/or authorised infringing copyright.
The expense impediment is dealt with by ensuring only, as the amendment puts it, flagrant breaches of copyright (along other criteria) will be considered before granting an injunction, in other words significant breaches of copyright must be demonstrated in order to surpass the high threshold. One must also demonstrate that the overseas location is used primarily for copyright infringement so sites such as YouTube.com will be exempt.
The amendment is intended to ensure there are procedures for a fair trial and due process for all those implicated by an injunction even rights to those in the allegedly offending overseas locations.
The amendment in attempting to grapple with the aforementioned problem areas also strives to ensure that technology and technological change is not chilled or targeted, rather creativity is to be fostered. But acknowledges there is a significant financial burden on those whose copyright material is being infringed and they are entitled to protection.
On it's face the amendment's approach appears to strike a balance between the protection of property and freedom of information/creativity whilst providing a fair and just platform for issues to be dealt with. Whether or not it will curb overseas copyright infringement is another thing, one will have to wait to see if it's effective or not.
No part of this post is to be considered or constitutes legal advice in any way, any opinions or information provided is for either entertainment or educational purposes only, contact Alex via phone, email or through the CONTACT page if you require legal assistance.