Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Hansard source

Thank you, Senator Ludlam. I want to take the opportunity to affirm that the primary purpose test within the bill ensures that the provisions contain a high threshold for a copyright owner to meet, as a safeguard against any potential abuse. I particularly direct you to section 115A, 'Injunctions against carriage service providers providing access to online locations outside Australia' and, in particular, I direct you to subclause (5), which I will come to in a moment.

The explanatory memorandum has provided a number of examples of online locations that are prima facie intended to be excluded from the operation of the new measure. These are: those operated mainly for a legitimate purpose but which may contain a small percentage of infringing content; an art gallery website operated outside Australia that may contain an authorised photograph; websites such as the www.youtube.com or www.blogger.com; and an online location operated overseas which provides legitimate copyright material to individuals within another geographic location but which is not licensed to distribute that copyright material in Australia—for example, the United States iTunes Store.

Can I take the Senate—and take you, Senator Ludlam—to the particular provision that I referred to, on matters to be taken into account by the court. In considering whether to grant the injunction, the court will be required under this bill to take the following matters into account: the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement, as is referred to in paragraph 115A(1)(c), which states, 'the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia)'. The court will also be required to take into account whether the online location makes available or contains directories, indexes or categories of the means to infringe, or to facilitate an infringement of that copyright. The court can also take into account whether the owner or operator of the online location demonstrates a disregard for copyright generally. The court will also take into account 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; whether disabling access to the online location is a proportionate response in the circumstances; and the impact on any person or class of persons likely to be affected by the grant of the injunction. The court can also consider whether it is in the public interest to disable access to the online location. It can also take into account whether the owner of the copyright complied with subsection (4). Subsection (4) states that—

Progress reported.