Copyright Amendment (Online Infringement) Bill 2018 [2018] AUSStaCSBSD 242 (14 November 2018)

• Copyright Amendment (Online Infringement) Bill 2018
• Significant matters in delegated legislation 10

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Copyright Amendment (Online Infringement) Bill 2018

Purpose	This bill seeks to amend the Copyright Act 1968 to: • allow injunctions to be made in respect of an online location that has 'the primary purpose or the primary effect' of infringing, or facilitating an infringement of copyright; • introduce a rebuttable evidentiary presumption that an online location is outside Australia; • enable the courts to order that an online search engine provider take reasonable steps so as not to provide search results that refer users to blocked online locations; • clarify the injunctive powers of the Federal Court relating to copyright; and • enable the minister to make a legislative instrument declaring that certain online search engine providers be exempted from the scheme.
Portfolio	Communications and the Arts
Introduced	House of Representatives on 18 October 2018

Significant matters in delegated legislation ^[10]

1.16 Section 115A of the Copyright Act 1968 sets out a process by which copyright owners may apply to the Federal Court to grant an injunction so as to require a carriage service provider to disable access to online locations outside Australia that infringe copyright, or facilitate the infringement of copyright. The bill seeks to make a number of amendments to this section, including to allow an application for an injunction to request that a carriage service provider take such steps as the Court considers reasonable to disable access to an online location outside Australia and to request an online search engine provider take steps so as not to provide a search result that refers to such an online location.^[11]

1.17 Item 9 of Schedule 1 seeks to insert proposed subsection 115A(8B), which provides that the minister may, by legislative instrument, declare that a particular online search engine provider or an online search engine provider that is a member of a particular class must not be specified in an application for an injunction, or an application to vary an injunction.

1.18 The committee's view is that significant matters, such as the specification of providers that are to be exempted from the operation of an injunctive scheme, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee notes that delegated legislation, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.19 The explanatory memorandum states that it is intended that the bill will enable injunctions to be sought against major internet search operators that are 'likely conduits to online locations that host infringing material',^[12] but not against 'smaller operators that do not have the same reach'.^[13] The explanatory memorandum further explains that the injunctive scheme is not intended to capture entities that: offer intranet search functions; provide search services to employees, members or clients that are confined to discrete sites, including educational and cultural institutions, or not-for-profit organisations; and provide search functionality that is limited to their own sites or to particular content or material, including real estate or employment websites or the National Library of Australia's Trove search.^[14]

1.20 However, if proposed subsection 115A(8B) is intended to provide a safeguard to ensure that applications for injunctions do not unfairly target 'smaller operators that do not have the same reach or entities that provide only internal (intranet) or limited search functions',^[15] it is unclear to the committee why the bill does not itself exclude such classes of smaller online search engines from the operation of the bill. As the bill is currently drafted, it would enable the minister to, by legislative instrument, exclude any online search engine provider from this scheme.

1.21 The committee requests the minister's detailed advice as to why it is necessary to enable delegated legislation to be made to exempt certain online search engine providers from the copyright injunctive scheme, and the appropriateness of instead amending the bill so as to specifically exclude certain classes of smaller providers.

1.1

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[10] Schedule 1, item 9, proposed subsection 115A(8B). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[11] Schedule 1, item 2, proposed subsections 115A(1) and (2).

[12] Explanatory memorandum, p. 15.

[13] Explanatory memorandum, p. 15.

[14] Explanatory memorandum, p. 15.

[15] Explanatory memorandum, p. 15.