Clause 10

Where the High Court is satisfied, on an application made by the owner or exclusive licensee of copyright in a material against a network service provider, that —

the services of the network service provider have been or are being used to access an online location, which is the subject of the application, to commit or facilitate infringement of copyright in that material; and

the online location is a flagrantly infringing online location,the High Court may, after having regard to the factors referred to in section 193DB(3), make an order requiring the network service provider to take reasonable steps to disable access to the flagrantly infringing online location.(2) For the purpose of determining under subsection (1)(b) whether an online location has been or is being used to flagrantly commit or facilitate infringement of copyright in materials, the High Court shall have regard to, and give such weight as the High Court considers appropriate to, all of the following matters:

whether the primary purpose of the online location is to commit or facilitate copyright infringement;

whether the online location makes available or contains directories, indexes or categories of the means to commit or facilitate copyright infringement;

whether the owner or operator of the online location demonstrates a disregard for copyright generally;

whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;

whether the online location contains guides or instructions to circumvent measures, or any order of any court, that disables access to the online location on the ground of or related to copyright infringement;

the volume of traffic at or frequency of access to the online location.(3) For the avoidance of doubt, the High Court shall not be confined to consideration of matters specified in subsection (2) and may take into account such other matters and evidence as may be relevant.Application for order under section 193DDA193DDB.—

Subject to subsection (3), the owner or exclusive licensee of copyright in a material must, before applying for an order under section 193DDA(1) —

send a notice to the owner of the online location that is intended to be the subject of the order (referred to in this section as the relevant online location owner) stating that the online location has been or is being used to commit or facilitate infringement of copyright in the material, and the intention of the owner or the exclusive licensee, as the case may be, to apply for that order if the relevant online location owner does not, within the prescribed period, cease the use of the online location to commit or facilitate infringement of copyright in the material; and

send, upon or after the end of the prescribed period referred to in paragraph (a) or after reasonable efforts are made to send the notice referred to in paragraph (a) to the relevant online location owner, a notice to the network service provider that is to be the defendant in an action under that section stating the intention of the owner or exclusive licensee, as the case may be, to apply for that order.(2) Every application for an order under section 193DDA(1) must be served on the network service provider who is the defendant in the action under that section, and notice of the making of the application must be given to the relevant online location owner.(3) At the hearing of an application for an order under section 193DDA(1), the High Court may dispense with the notice required to be sent under subsection (1)(a) and the notice under subsection (2) if the High Court is satisfied that the plaintiff, despite reasonable efforts to do so, is unable to determine the identity or address of the relevant online location owner or to send the notices to the relevant online location owner.(4) The relevant online location owner shall —

have the right to be heard on an application for an order under section 193DDA(1); and (b)have the same right of appeal as a party to the application.(5) All provisions in Division 4 of Part V shall apply, with the necessary modifications, to any application for an order under section 193DDA(1).Variation or revocation of order193DDC.—

The High Court may, on the application of a party to an order made under section 193DDA(1), vary the order as it thinks just if the High Court is satisfied that there has been a material change in the circumstances or that it is otherwise appropriate in the circumstances to do so.(2) The High Court may, on the application of a party to an order made under section 193DDA(1), revoke the order if the High Court is satisfied —

upon further evidence, that the order ought not to have been made;

that the online location has ceased to be a flagrantly infringing online location; or

that it is otherwise appropriate in the circumstances to do so.(3) In this section, a reference to a party to an order made under section 193DDA(1) includes a reference to the owner of the online location that is the subject of the order.”.