Federal Court grants interlocutory relief to ‘The Odyssey’ copyright owners ahead of film release

The respondents, which were internet service providers, consented to or expressed no opposition to the applicants’ requested orders. 

Orders issued by Federal Court

The Federal Court issued the applicants’ requested orders. The court ruled that the applicants exerted reasonable efforts to contact the Odyssey TOLs’ owners or operators and give them information regarding the interlocutory application hearing. 

The court determined that the Odyssey TOLs’ owners or operators did not meaningfully engage with the efforts of the applicants, who mostly received automatic responses when reaching out. 

The court noted that the applicants filed their interlocutory application as close as possible to the scheduled release date. 

Federal Court’s prima facie findings

On a prima facie basis, the Federal Court of Australia found that:

• The applicants owned the copyright in “The Odyssey” and other films accessible via the Odyssey TOLs 
• The respondents were “carriage service providers,” defined in the Copyright Act and having the same meaning as in s 87 of the Telecommunications Act 1997 (Cth) 
• The Odyssey TOLs were an “online location outside Australia” under the presumption in s 115A(5A) of the Copyright Act 
• The Odyssey TOLs were streaming services poised to allow access to “The Odyssey” upon its release 
• The applicants had not granted the Odyssey TOLs’ owners or operators any licence or consent to copy or communicate the films covered by their copyright 
• The Odyssey TOLs operated flagrantly to obscure their operation’s nature and offered free access to a catalogue of films, including those covered by the applicants’ copyright, and television programs, almost all of which had advertising 

The court saw a prima facie case that the Odyssey TOLs: 

• would infringe or facilitate the infringement of the applicants’ copyright in “The Odyssey,” without the proposed orders 
• had the primary purpose or effect of infringing or facilitating an infringement of copyright, including the applicants’ copyright 

The court also found a prima facie case that the applicants deserved relief under s 115A of the Copyright Act, specifically the proposed orders, which could appropriately disable access and respond proportionately to the prospective copyright infringement. 

Finally, the balance of convenience favoured issuing the proposed orders because the court could infer from the evidence that the applicants: 

• could experience a detrimental financial impact if people could freely stream “The Odyssey” from the Odyssey TOLs 
• could not recover easily from this loss since the Odyssey TOLs operated outside Australia 

Assuming that the Odyssey TOLs’ interests could be a legitimate consideration, the court held that the adverse impact on the applicants’ interests outweighed the Odyssey TOLs’ interests. 

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