For companies whose core business value is tied to copyright works – including those in the software, film and music industries – s115A provides a valuable tool for defeating online copyright infringers, particularly in situations where the operator of the infringing website cannot be located or identified. It empowers copyright owners to require Australian internet providers to block access to online locations hosting infringing content, particularly when the infringers are untraceable. Additionally, courts can waive the requirement to serve notice on the infringer if the copyright owner demonstrates reasonable efforts to locate them.
Overview of the case
Earlier this week, Cheeseman J handed down orders in Roadshow Films Pty Limited v Telstra Limited [2024] FCA 485 (Roadshow), the 16th case (and the second this year) in a long line of applications brought by Roadshow Films under section 115A of the Copyright Act 1968 (Cth) (Copyright Act) to geoblock online locations that infringe copyright and have the primary purpose of doing so (Target Domains).
To date, section 115A has primarily been used by film and TV producers (such as Roadshow Films, Paramount Pictures, Columbia Pictures, Universal Studios, Warner Bros, Netflix and Apple) (the Applicants in this case). However, s115A covers all forms of copyright, including software, music, literary works and artworks.
For instance, it has been used before to require carriage service providers (e.g. Optus, Telstra, TPG, etc) to block Australian access to:
- online locations (not even websites) to which set-top boxes could connect to access unlicensed TV programs
- websites which permit users to download audio from YouTube videos
- websites which had copied the text and underlying software of a pre-existing website.
It can therefore be a powerful tool against online infringement, especially where the infringers cannot be found and refuse to respond to demands which can make more traditional measures impossible to rely on.
The key elements and requirements of section 115A are investigated below in the context of Roadshow.
Service on the owner of the online location
Ordinarily, the copyright owner must notify the owners of the infringing Target Domains of the application. However, section 115A permits the Court to dispense with that service, if the Court is satisfied that the copyright owner is unable, despite reasonable efforts, to determine the entity or their address, or to send notices to them. In this case, Cheeseman J found the Applicants had used reasonable efforts, including by using email and post, and web forms.
Are the Target Domains outside Australia?
Determining where an IP address is physically based can be difficult, which is why section 115A includes a provision deeming the Target Domains to be outside Australia unless otherwise established. The Applicants in Roadshow relied on this presumption, but also provided evidence that each of the Target Domains was created, and each of the relevant IP addresses were registered, overseas.
Did the Target Domains facilitate copyright infringement?
Cheeseman J in her judgement was satisfied that because each Target Domain made large numbers of films and television programs available for commercial gain (through advertising or access fee), the Target Domains did infringe, or facilitate the infringement of, copyright and that this was the primary purpose of the Target Domains. This was established through statutory declarations of individuals had who accessed each of the Target Domains and confirmed that it was unlicensed content owned by the applicant.
Outcome
The Court therefore ordered that the carriage service providers disable access to the Target Domains for Australians and that the Applicant’s pay the Respondent’s compliance costs calculated at the rate of $50 per domain name.
Next steps
If you’re facing online copyright infringement, evaluate whether section 115A can address the issue, particularly if infringers are hard to trace. Ensure comprehensive documentation of the infringement, including evidence of unlicensed content, user activity and domain details.
Get in touch with our team Sarah Gilkes, Ben Cameron, and Isabel Roach to understand the procedural requirements and maximise the effectiveness of your application.
