In the age of the internet, music videos have persisted on MTV and numerous other television outlets although they have to an extent been challenged by other forms of high-brow entertainment available. Many of them involve house inspections or the rituals of courtships, and sometimes both. Nevertheless, despite these diversions, the Rage is maintained.
On 3 April 2019, Justice Perram made orders requiring major Australian internet service providers to disable access to a number of websites, which enabled users to ‘rip’ soundtracks from music videos streamed from YouTube. The decision, APRA v Telstra Corporation Limited, is the latest in a string of cases under s 115A of the Copyright Act, which have seen the Federal Court make orders restricting access to a range of copyright-infringing online locations. It is the first of these decisions to consider ‘ripping’ – the practice of extracting files for download from online streaming services.
The proceeding in APRA v Telstra was brought by the Australasian Performing Rights Association, Sony, Universal and Warner, being the owners (or exclusive licensees) of the Australian copyright in various well-known sound recordings and musical works. The respondents were major Australian internet service providers: Telstra, Foxtel, Vodafone, Optus and TPG. The applicants sought orders requiring the respondents to disable access to 4 targeted websites operating from 7 domain names. Each of these websites permitted users to rip audio files from music videos on YouTube by pasting the URL of the music video in a data entry box on the website.
Justice Perram found that the operators of the targeted websites had infringed, and facilitated the infringement of, copyright owned by the applicants. His Honour found that the downloading of soundtracks from the applicants’ YouTube music videos constituted an unauthorised reproduction and communication to the public of the sound recordings and musical works embodied in those music videos. Key to this finding was the fact that the applicants had permitted their music videos to be streamed via YouTube, but had not permitted them to be downloaded.
In the circumstances, Justice Perram found that the case for an injunction was ‘overwhelming’ – it being plain that the websites were involved in ‘industrial scale copyright infringement.’ His Honour granted the orders sought by the applicants and made no order as to the costs (save for an order that the applicants pay the respondents’ costs of compliance).
There are a number of important takeaways from the decision
- Blocking orders will be available against a range of infringing online locations: since its introduction in 2015, s 115A has been used to disable access to unauthorised torrent websites (Roadshow Films Pty Ltd v Telstra Corp Ltd  FCA 1503, Universal Music Australia Pty Ltd v TPG Internet Pty Ltd  FCA 435) streaming platforms (Foxtel Management Pty Ltd v TPG Internet Pty Ltd  FCA 1041, Foxtel Management Pty Ltd v TPG Internet Pty Ltd  FCA 933) and A applications (Roadshow Films Pty Ltd v Telstra Corp Ltd). APRA v Telstra is the first decision under s 115A to concern ripping, and is likely to make it easier for copyright owners to enforce their rights against ripping websites in future.
- Proceedings under s 115A are relatively efficient: the proceedings in APRA v Telstra took just over 4 months from their commencement to the grant of final orders. This stands in stark contrast to previous cases concerning online copyright infringement, which have historically been very protracted affairs (see, for example, the litigation history of Roadshow Films Pty Ltd v iiNet Ltd  HCA 16).
- Costs exposure is low: proceedings under s 115A involve a non-fault remedy and typically entail a large degree of cooperation between the parties. As a result, adverse costs orders are rare. In 5 of the 7 cases decided under s 115A, the Court made no order as to the costs of the proceeding. In the remaining two, the Court made confined costs orders against the applicants in respect of aspects of the case where they were unsuccessful. In each decision, the Court ordered the applicants to pay the respondents’ costs of compliance with the blocking orders at the (relatively trifling) rate of $50 per blocked domain name.
- S 115A continues to evolve: One criticism of s 115A is the relative ease with which the operators of infringing websites can relocate to alternative domains after an injunction has been granted. In 2018, the Copyright Act was amended to address this issue, permitting the Court to make orders requiring carriage service providers to block domain names, URLs and IP addresses that both parties agree have started to provide access to the targeted online location after the injunction was made.
- The Court’s powers under s 115A are broad: Notably, such orders were not made in the present case. Instead, Justice Perram made orders permitting the applicants to notify the Court of any domains which subsequently provide access to the targeted websites, and, in the absence of any objection by the respondents, for such domains to be incorporated into the existing blocking order. The reasons for his Honour’s departure from the orders contemplated under s 115A are not provided – however, it may have something to do with the difficulty the applicants would likely face in seeking to procure agreement from each of the 35 corporate respondents in respect of new infringing domains. Evidently, the powers granted to the Court under s 115A were broad enough to enable his Honour to tailor the orders to suit the specifics of the case.
- Music vs Reality TV: On a lighter note, the introductory paragraphs of the decision include a (delightfully sardonic) description by his Honour of the challenges of the modern music video in the internet age – an extract from which is above.
The decision in APRA v Telstra adds to the growing body of jurisprudence under s 115A of the Copyright Act. While the legislative regime in s 115A is perhaps still to be perfected, it nevertheless provides a robust, efficient tool for Australian copyright owners to tackle the problem of online copyright infringement.