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COPYRIGHT ACT 1968 - SECT 115A

Injunctions relating to online locations outside Australia

Application for an injunction

             (1)  The owner of a copyright may apply to the Federal Court of Australia to grant an injunction that requires a carriage service provider to take such steps as the Court considers reasonable to disable access to an online location outside Australia that:

                     (a)  infringes, or facilitates an infringement, of the copyright; and

                     (b)  has the primary purpose or the primary effect of infringing, or facilitating an infringement, of copyright (whether or not in Australia).

             (2)  The application under subsection (1) may also request that the injunction require an online search engine provider (other than a provider that is covered by a declaration under subsection (8B)) to take such steps as the Court considers reasonable so as not to provide a search result that refers users to the online location.

Granting the injunction

          (2A)  The Court may grant the injunction in the terms, and subject to the conditions, that the Court considers appropriate.

Note 1:       For the matters that the Court may take into account when determining whether to grant the injunction, see subsection (5).

Note 2:       The terms and conditions of the injunction that apply to a carriage service provider under subsection (1) may be different from those that apply to an online search engine provider under subsection (2).

          (2B)  Without limiting subsection (2A), the injunction may:

                     (a)  require the carriage service provider to take reasonable steps to do either or both of the following:

                              (i)  block domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;

                             (ii)  block domain names, URLs and IP addresses that the carriage service provider and the owner of the copyright agree, in writing, have started to provide access to the online location after the injunction is made; and

                     (b)  require the online search engine provider to take reasonable steps to do either or both of the following:

                              (i)  not provide search results that include domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;

                             (ii)  not provide search results that include domain names, URLs and IP addresses that the online search engine provider and the owner of the copyright agree, in writing, have started to provide access to the online location after the injunction is made.

Parties

             (3)  The parties to an action under subsection (1) are:

                     (a)  the owner of the copyright; and

                     (b)  the carriage service provider; and

                   (ba)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider--the online search engine provider; and

                     (c)  the person who operates the online location if, but only if, that person makes an application to be joined as a party to the proceedings.

Service

             (4)  The owner of the copyright must notify:

                     (a)  the carriage service provider; and

                    (aa)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider--the online search engine provider; and

                     (b)  the person who operates the online location;

of the making of an application under subsection (1), but the Court may dispense, on such terms as it sees fit, with the notice required to be sent under paragraph (b) if the Court is satisfied that the owner of the copyright is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person.

Matters to be taken into account

             (5)  In determining whether to grant the injunction, the Court may take the following matters into account:

                     (a)  the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement, as referred to in paragraph (1)(b);

                     (b)  whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;

                     (c)  whether the owner or operator of the online location demonstrates a disregard for copyright generally;

                     (d)  whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;

                     (e)  whether disabling access to the online location is a proportionate response in the circumstances;

                    (ea)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider--whether not providing search results that refer users to the online location is a proportionate response in the circumstances;

                      (f)  the impact on any person, or class of persons, likely to be affected by the grant of the injunction;

                     (g)  whether it is in the public interest to disable access to the online location;

                    (ga)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider--whether it is in the public interest not to provide search results that refer users to the online location;

                     (h)  whether the owner of the copyright complied with subsection (4);

                      (i)  any other remedies available under this Act;

                      (j)  any other matter prescribed by the regulations;

                     (k)  any other relevant matter.

Presumption that the online location is outside Australia

          (5A)  For the purposes of the proceedings, the online location is presumed to be outside Australia, unless the contrary is established.

Affidavit evidence

             (6)  For the purposes of the proceedings, section 134A (affidavit evidence) applies as if the reference in paragraph 134A(f) to a particular act included a reference to a class of acts.

Rescinding and varying injunctions

             (7)  The Court may:

                     (a)  limit the duration of; or

                     (b)  upon application, rescind or vary;

an injunction granted under this section.

             (8)  An application under subsection (7) may be made by:

                     (a)  any of the persons referred to in subsection (3); or

                     (b)  any other person prescribed by the regulations.

          (8A)  An application under subsection (7) must not request the Court to vary the injunction so that it applies to an online search engine provider that is covered by a declaration under subsection (8B).

Declarations excluding online search engine providers

          (8B)  The Minister may, by legislative instrument, declare that:

                     (a)  a particular online search engine provider; or

                     (b)  an online search engine provider that is a member of a particular class;

must not be specified in an application under subsection (1) or (7).

Costs

             (9)  A carriage service provider or, if applicable, an online search engine provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings.



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