A critical review of the Australian approach to tackling online copyright infringement

This article critically evaluates the current approach adopted in Australia in dealing with online content that either infringes, or facilitates the infringement of, copyright. It first considers the recent decision of the Australian Federal Court in Roadshow Films v Telstra, which resulted in an injunction being issued against some of the major Australian ISPs requiring them to block access to a number of online locations that infringed copyright. The discussion focuses on the issue of circumvention and compares the approach favoured by the High Court of England and Wales in tacking this problem. The article next considers the practice of notice and takedown (N & T). A consideration of this extrajudicial means of copyright enforcement is inevitable because the blocking injunction (the basis for which is derived from s.115A of the Copyright Act 1968 (Cth)) is limited to infringing online locations outside Australia. As such, the practice of N & T is crucial when the source of infringement is within the jurisdiction. The discussion on N & T suggests that an important safeguard protecting the interests of authors of legitimate online content— i.e. the counter-notice and restore mechanism—does not apply unless the content was hosted by a service provider that was also a "carriage service provider". Yet, most content online are hosted by service providers that are not carriage service providers.