Subtitle piracy: Will it be enforced in Australia?

The question of whether subtitles constitute a literary work was debated in Australia's Federal Court on Friday morning, as a group of rights owners led by Roadshow Films seek to get a swathe of "piracy" websites blocked.

Counsel for Roadshow said the coalition involved in this case can be categorised into three groups, with the first targeting subtitle files, the second -- TVB -- targeting Chinese films and TV show piracy in Australia, and the third seeking to block sites making Japanese anime films and TV shows available.

A 12th applicant, Tokyo Broadcasting Systems, has also now joined the case in the third group to specifically fight piracy against Dagashi Kashi.

In a demonstration of how infringing subtitle files are used in conjunction with pirated movies or TV shows, counsel for Roadshow used Subscene.com in court on Friday to show how a file containing subtitles can be downloaded in various different languages, and automatically synchronised with a movie.

"There doesn't appear to be anything else on the site that isn't a subtitle file," counsel said.

Justice Nicholas commented that he understands the copyright held in relation to screenplays, but questioned how this relates to subtitles.

Counsel for Roadshow argued that subtitles communicate to the public a literary work -- either the authorised subtitles or the screenplay. When someone buys an authorised copy of the DVD, it comes with subtitles, which she argued are a literary work.

The case, which will likely be decided in 2019, is targeting Addic7ed, opensubtitles.org, Subscene, and YIFY subtitles.

In October, counsel said the application to have the court order blocks against these websites is "no different" from the rest of the piracy site-block applications, despite being a new type of site to be blocked with no audio or visual content.

Back in August, Roadshow had taken aim at websites offering access to scripts with subtitle files that can be combined with movies and TV shows.

Nicholas J will evaluate whether the subtitle sites meet the requirements of being websites that are hosted overseas and are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright under Section 115A of the Copyright Amendment (Online Infringement) Act, which passed both houses of Parliament in mid-2015.

Since the case was first kicked off, Parliament late last month passed the Copyright Amendment (Online Infringement) Bill 2018, with the federal government saying it will enable rights holders to better fight copyright infringement.

The Australian government introduced the new legislation in October, proposing to expand piracy site-block laws from carriage service providers to online search engine providers.

The Bill will also allow faster blocks of mirror sites, reduce the burden of proving that a site is hosted outside of Australia, and expand the legislation to sites that not only have the "primary purpose", but also to those that have the "primary effect" of infringing copyright.

The law's passage came despite a group including Facebook and Twitter saying the amendments "expand the scheme far beyond what is reasonable". An individual submission by Google had also said it strongly disagrees with the law, as it would remove Federal Court control over what websites are blocked and hand it instead to commercial entities.

The passage of the amendment also came despite the successful track record of the existing Act in blocking hundreds of torrenting and streaming websites in an increasingly speedy way, as well as its recent expansion to smart TV boxes and sites providing subtitle files.

Under the initial Federal Court ruling, rights holders are to pay a AU$50 fee per domain they want to block, with the websites to be blocked within 15 business days.

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