Website Blocking Injunctions to Prevent Copyright Infringements: Proportionality and Effectiveness

Lindsay, DF

Website Blocking Injunctions to Prevent Copyright Infringements: Proportionality and Effectiveness

Lindsay, DF

Permalink

Publisher:: University of New South Wales
Publication Type:: Journal Article
Citation:: University of New South Wales Law Journal, 2017, 40 (4), pp. 1507 - 1538
Issue Date:: 2017-11-07

Open Access

Copyright Clearance Process

Recently Added
In Progress
Open Access

This item is open access.

Adobe PDF

Download Published VersionAdobe PDF (451.71 kB)

View statistics

Full metadata record

Field	Value	Language
dc.contributor.author	Lindsay, DF https://orcid.org/0000-0001-6222-8738	en_US
dc.date.available	2017-09-04	en_US
dc.date.issued	2017-11-07	en_US
dc.identifier.citation	University of New South Wales Law Journal, 2017, 40 (4), pp. 1507 - 1538	en_US
dc.identifier.issn	0313-0096	en_US
dc.identifier.uri	http://hdl.handle.net/10453/127945
dc.description.abstract	The jurisdiction to award no-fault injunctions against Internet intermediaries, such as ISPs, to block Internet access to deter online copyright infringement is the most recent addition to intermediary liability law. In Australia, s 115A of the Copyright Act 1968 (Cth), which provides for injunctions against intermediaries that provide access to online locations outside Australia, came into effect on 27 June 2015; and the first injunctions were awarded by Nicholas J of the Federal Court on 15 December 2016. The jurisdiction to award this form of injunction was inspired by s 97A of the Copyright, Designs and Patents Act 1988 (UK), which implements a European Union directive, while the drafting was influenced by equivalent provisions of the Singapore Copyright Act introduced in 2014. This article identifies and analyses issues relating to the limits on this new jurisdiction, focusing on the potential role of the proportionality principle, as developed under EU law, to set principled limits on the award of blocking orders. In doing so, the article examines three difficult issues that arise in applying the proportionality principle to website blocking: the application of ‘rights-balancing’ proportionality; the effectiveness of blocking orders; and the costs of blocking, including the allocation of costs between right holders and intermediaries. The article concludes that, despite the significant challenges involved in assessing the proportionality of blocking orders, there is scope for Australian law to develop to more explicitly take into account considerations arising from proportionality analysis, including ‘rights-balancing’ and the relative effectiveness of blocking techniques.	en_US
dc.publisher	University of New South Wales	en_US
dc.relation.ispartof	University of New South Wales Law Journal	en_US
dc.title	Website Blocking Injunctions to Prevent Copyright Infringements: Proportionality and Effectiveness	en_US
dc.type	Journal Article
utslib.citation.volume	4	en_US
utslib.citation.volume	40	en_US
utslib.location.activity	Australia	en_US
utslib.for	1801 Law	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	open_access
pubs.consider-herdc	true	en_US
pubs.issue	4	en_US
pubs.publication-status	Published	en_US
pubs.volume	40	en_US

Abstract:

The jurisdiction to award no-fault injunctions against Internet intermediaries, such as ISPs, to block Internet access to deter online copyright infringement is the most recent addition to intermediary liability law. In Australia, s 115A of the Copyright Act 1968 (Cth), which provides for injunctions against intermediaries that provide access to online locations outside Australia, came into effect on 27 June 2015; and the first injunctions were awarded by Nicholas J of the Federal Court on 15 December 2016. The jurisdiction to award this form of injunction was inspired by s 97A of the Copyright, Designs and Patents Act 1988 (UK), which implements a European Union directive, while the drafting was influenced by equivalent provisions of the Singapore Copyright Act introduced in 2014. This article identifies and analyses issues relating to the limits on this new jurisdiction, focusing on the potential role of the proportionality principle, as developed under EU law, to set principled limits on the award of blocking orders. In doing so, the article examines three difficult issues that arise in applying the proportionality principle to website blocking: the application of ‘rights-balancing’ proportionality; the effectiveness of blocking orders; and the costs of blocking, including the allocation of costs between right holders and intermediaries. The article concludes that, despite the significant challenges involved in assessing the proportionality of blocking orders, there is scope for Australian law to develop to more explicitly take into account considerations arising from proportionality analysis, including ‘rights-balancing’ and the relative effectiveness of blocking techniques.

Please use this identifier to cite or link to this item:

http://hdl.handle.net/10453/127945