Case Summary and Outcome

The Australian Federal Court ruled in favor of a Hong Kong based broadcaster, ordering ISPs to block access to online sites facilitating copyright infringement though streaming on set-top boxes and virtual stores such as Google Play and Apple’s App Store, among others. The case was brought by Television Broadcasts Limited (TVB) which provides a pay-tv service in Australia allowing subscribers to access TVB’s copyrighted television broadcasts via the internet. The Court applied a three pronged test, established in the Copyright Act, to determine whether a blocking injunction should be granted.  The court found that the ISPs 1) facilitate access to the offending sites; 2) that the offending sites infringe TVB’s copyrights; and 3) that the primary purpose of the offending sites was to facilitate copyright infringement by making material available online in Australia without the consent of copyright owners. In light of this, the Court granted TVB an injunction and ordered each of the ISPs to disable access to the target online locations within 15 days.

Facts

Television Broadcasts Limited (TVB) is a producer and broadcaster of TV content based in Hong Kong, an administrative region of the People’s Republic of China. TVB provides a pay-tv service in Australia allowing subscribers to access TVB’s copyrighted television broadcasts via the internet.

TVB submitted an application to the Federal Court of Australia seeking an order that Telstra Corporation and other internet services providers (collectively “the ISPs”) disable access to online locations (“the offending sites”) that allowed users to access TVB content on “set-top streaming boxes.”

The primary purpose of the target online locations to was to enable set-top boxes to stream and users to view television programs from TVB and various third parties. Users could access the offending sites using the services of the ISPs. TVB sought the injunction (order) under Section 115A of the Copyright Amendment (Online Infringement) Act, 2015 (“the Copyright Act”), to end the streaming of TV programs facilitated by access to the offending sites.

Decision Overview

Nicholas, J., delivered the judgment of the Federal Court of Australia.

The main issue before the court was whether TVB’s copyrighted material was made available in Australia via the ISPs without the permission of the owners in breach of TVB’s copyrights or licenses. TVB’s legal argument in seeking relief under section 115A of the Copyright Act was that the primary purpose of the offending sites was to facilitate copyright infringement by making copyright-protected films available for viewing online without TVB’s consent.

Section 115A of the Copyright Act poses three requirements for determining whether a blocking injunction should be granted.

1. The ISP is a carriage service provider that provides access to the offending sites, each of which is located outside Australia;
2. The offending sites infringe or facilitate copyright infringement; and
3. The primary purpose of the offending sites are to infringe or facilitate copyright infringement.

The Court primarily relied on two prior judgments delivered by the Federal Court of Australia — Roadshow Films Pty Ltd v. Telstra Corp. and Universal Music Australia Pty Ltd. v. TPG Internet Pty Ltd. — in understanding the meaning and application of Section 115A of the Copyright Act. TVB easily met the first two requirements for receiving the blocking order — that the ISPs facilitate access to the offending sites and that the offending sites infringe TVB’s copyrights. However, the third requirement that “the primary purpose” of the offending sites be to infringe or facilitate copyright infringement required closer inspection.

In determining whether the primary purpose of an online site is to infringe or facilitate infringement, it is necessary to look at the site’s function from a broader perspective. In this case, the offending sites were designed to provide users with access to TVB television content consisting of movies, television series, news, weather, and more. There was no information suggesting that the offending sites had obtained the permission of the copyright owners to make the content available to online users. Moreover, TVB’s exclusive licenses  to some content did not give any permission to the offending sites to share the copyrighted content.

Thus, the Court found that the primary purpose of the offending sites was to facilitate copyright infringement by making material available online in Australia without the consent of copyright owners. In light of this, the Court granted TVB an injunction under Section 115A of the Copyright Act, and the Court required each of the ISPs to disable access to the target online locations within 15 days.