Today, the Federal Court of Australia handed down a decision in the latest site blocking case in Australia, Television Broadcasts Limited & anor v Telstra Corporation Limited & ors [2018] FCA 1434.

Television Broadcasts Limited (TVB), a Hong Kong based broadcaster and producer of Chinese language content was successful in obtaining orders requiring Internet Service Providers to take reasonable steps to block user access to online locations which support the operation of 7 pirate set top boxes (also known as illicit streaming devices).

In addition to representing TVB in this matter, Baker McKenzie acted in the first Australian case under section 115A and has also acted the majority of major site blocking cases conducted in Australia to date.

The case is the first in the world to consider the application of site blocking provisions, such as section 115A of the Copyright Act, to pirate set top boxes and follows the decision earlier this year in Roadshow Films Pty Limited v Telstra Corporation Limited [2018] FCA 582, which was the first case in the world to specifically consider the use of this form of remedy in relation to an app downloadable onto android based devices.

The Court found that a number of online locations, which were accessed by the pirate set top boxes in their normal functioning, facilitated the large scale infringement of copyright which was occurring through the pirate set top boxes. These boxes carried a very significant amount of content including broadcast streams of TVB broadcast content as well as broadcast content of other Asian broadcasters plus a significant amount of on demand motion pictures and television content.

The online locations provided functionality which included:

  • authentication of the pirate set top box to access the pirate service;
  • supplied electronic program guides to the pirate set top boxes;
  • provided the boxes with the locations from which infringing content can be streamed;
  • supplied a list of applications (sometimes referred to as app repositories) which can be used in conjunction with the pirate set top boxes to infringe; and
  • locations which allowed the updating of software and apps used by the pirate set top boxes.

The Court accepted that the primary purpose of these locations, all of which were outside Australia, was to facilitate the infringement of copyright. While a significant proportion of the content was contained in broadcasts which originated in Hong Kong (and for which broadcast copyright is not recognised under the Australian Copyright Act), the Court accepted that the broadcasts were comprised of significant amounts of pre-recorded cinematograph films owned by TVB and other content owners. The Court concluded that the communication of this content into Australia occurred without the permission of the copyright owners and was therefore an infringement of the communication right.

The Court also considered a number of discretionary factors such as the flagrancy of the infringement, the impact on Australians “free riding” on pirate services, the availability of other remedies, proportionality of the response and compliance with notice obligations. It concluded that in the circumstances of the case that the orders requiring Internet Service Providers to take reasonable steps to block access to the specified online locations.

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