The Australian Federal Court has decided in favour of the world's largest producers of Chinese media content, TVBO Productions and Television Broadcasts (TVB), on Thursday ordering ISPs to block access to a series of domain names facilitating the infringement of their copyright via set-top boxes, law firm Baker McKenzie has said.
TVB's application had taken issue with seven separate set-top boxes that run on the Google Android operating system and use proprietary software applications that allow users to watch video-on-demand content, live TV broadcasts, and replayed TV broadcasts from five channels owned by TVB.
The Chinese broadcaster was therefore seeking an order to sever the domain names involved in the process, which it said would halt these devices from accessing the content.
Baker McKenzie said the online locations provided functionality to the set-top boxes, including authentication of the boxes to access the piracy service; EPGs; locations for streaming copyright-infringing content; locations to update software and apps being used by the boxes; and a list of apps or app repositories to be used alongside the boxes.
TVB had hit a roadblock in its case back in April, with Justice Nicholas remaining unconvinced that watching a live stream in Australia of TVB's Chinese broadcast content amounts to copyright infringement, because no copy of the content is being made.
"If most of what is occurring here is a reproduction of broadcasts that are not protected by copyright, then the primary purpose is not to facilitate copyright infringement," Nicholas J pointed out at the time.
Unable to answer questions on whether watching the live broadcast amounted to copyright infringement, Nicholas J at the time gave counsel additional time to submit an affidavit addressing this. Counsel had argued that much of the content is curated and made up of original TVB-produced films and TV shows, rather than pure live broadcasts.
"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," Baker McKenzie said on Thursday afternoon.
"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 judgment follows Roadshow Films winning a similar case back in April, which resulted in internet service providers being ordered to block 16 online locations of alleged piracy websites -- the domain names being used by smart TV boxes to access alleged copyright-infringing streaming services via apps.
Roadshow and TVB last month also brought another new action alongside Madman Entertainment, targeting websites offering access to scripts with subtitle files that can be combined with movies and TV shows, with claims that 151 domains facilitate the infringement of literary works.
"People have recorded from the motion pictures or the programs -- the video content -- then translated the words into different languages, and then those websites make available files that contain the subtitles in those languages," counsel explained in August.
"Users can download those and then using video programs can combine those with the [films] ... they can combine the two and watch them."
The most recent piracy block came in June, when the Federal Court ordered Australia's internet service providers to block another swathe of allegedly illegal torrenting and streaming websites, after just one day following a one-hour hearing.
That hearing had seen counsel for Foxtel present evidence against 11 to 15 torrent websites and 10 streaming sites, including streaming site HDO and torrenting sites ETTV and Torrents.me, as well as a new version of the Pirate Bay, which was blocked years ago under a previous Foxtel case.
Previous site-blocking hearings saw content owners including Foxtel successfully seek blocks against Kickass Torrents, and more than 200 additional alleged piracy sites. Under the initial 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.
Website blocking was legislated under the Copyright Amendment (Online Infringement) Act, which passed both houses of Parliament in mid-2015 and allows rights holders to obtain a court order to block websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright under Section 115A.
Research from Australia's Department of Communications last month showed that for the third year in a row, online copyright infringement rates have dropped off across TV series, movies, and music, with the finding that consumers are increasingly paying for digital content.
"This trend is probably driven by paid streaming services such as Netflix and Stan, which have been shown to experience dramatic popularity over the past few years and negates the need for consumers to source the content using other means," the department noted.