Online search engines to be brought into Australia's battle with online piracy

It could soon be easier for copyright owners to get injunctions blocking access to online locations, including against  search engine providers, following the introduction of a Bill to amend Australia's site-blocking legislation.

On 18 October 2018, the Copyright Amendment (Online Infringement) Bill 2018 was introduced to Parliament. The Bill proposes a series of amendments to section 115A of the Copyright Act 1968 , which enables the Federal Court to grant injunctions requiring carriage service providers to take reasonable steps to block access to online locations outside Australia that infringe, or facilitate the infringement of, copyright.  Since that scheme was introduced in 2015, the Federal Court has made site-blocking orders in eight separate cases under section 115A of the Act.

Extending the injunctions to search engine providers

The Bill will enable copyright owners to include search engine providers in their application for an injunction, to require that the provider take reasonable steps not to provide a search result that refers users to the relevant online location. This amendment seeks to address concerns that the effectiveness of site-blocking orders has been reduced because search engines enable users to access blocked sites by providing search results with alternate pathways to the site.

This amendment will likely have the greatest impact on major search engine providers such as Google, Microsoft and Yahoo!. To avoid any burdensome effects of site-blocking orders on small search engine providers, the amendments give the Minister the power to exclude search engine providers from the operation of the section through legislative instrument.

Broadening the "primary purpose" test

In order to obtain a blocking order for an online location, copyright owners currently need to establish that the "primary purpose" of the online location is to infringe, or facilitate the infringement of, copyright. The Bill expands this test to "the primary purpose or the primary effect of" infringing, or facilitating the infringement of, copyright. The amended test will make it easier for copyright owners to apply for injunctions where they would otherwise struggle to demonstrate that the intent of the site operator or site users was primarily to infringe copyright. In particular, it will enhance the ability of copyright owners to seek injunctions in relation to cyberlockers, which enable file-sharing by third parties.

Making it easier to establish that the site is located outside Australia

A key element of section 115A of the Act is that the online location is located outside Australia. The Bill introduces a presumption that the online location is outside Australia unless the contrary is established. The rebuttable presumption means that copyright owners do not need to engage in various processes to establish the location of the site (which can be complicated due to reverse proxies such as Cloudflare) unless this is contested by the carriage service provider, operator of the online location or search engine provider.

Enabling injunctions to be extended by agreement

Currently, where an online location is the subject of an injunction and new pathways (for example, new URLs or domain names) are subsequently created which give access to that same online location, copyright owners can seek orders from the Federal Court extending the injunction to cover the new pathways. This process can take several weeks.

Under the proposed amendments, an injunction can cover new pathways where the copyright owner and carriage service provider both agree that specific new pathways have started providing access to the online location after the injunction has been made. The same ability to include new pathways is provided in relation to search engine providers. The amendment is intended to provide a more efficient method of blocking new pathways that have been created by site operators to circumvent blocking orders. However, as the injunction will only extend to new pathways in circumstances where carriage service providers agree, it remains to be seen whether this amendment will achieve its intended purpose.

The Bill takes a number of steps towards enhancing the effectiveness of Australia's site-blocking legislation for the benefit of creative industries, and demonstrates the complex, multi-faceted nature of responding to online copyright infringement.