Clause 17

Where the High Court is satisfied, on an application made during the protection period of a performance by the performer of the performance 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 make or facilitate any unauthorised use of that performance; and

the online location is a flagrantly infringing online location,the High Court may, after having regard to the factors referred to in section 252CB(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 make or facilitate an unauthorised use of any performance, 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 make or facilitate unauthorised use of performances;

whether the online location makes available or contains directories, indexes or categories of the means to make or facilitate unauthorised use of performances;

whether the owner or operator of the online location demonstrates a disregard for the authorised use of performances 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 the unauthorised use of performances;

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 the unauthorised use of performances;

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 252CDA252CDB.—

Subject to subsection (3), the performer of a performance, the protection period of which has not expired, must before applying for an order under section 252CDA(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 make or facilitate an unauthorised use of the performance and the intention of the performer, to apply for that order if the relevant online location owner does not, within a prescribed period, cease the use of the online location to make or facilitate an unauthorised use of the performance; 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 performer to apply for that order.(2) Every application for an order under section 252CDA(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 252CDA(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 252CDA(1); and

have the same right of appeal as a party to the application.Variation or revocation of order252CDC.—

The High Court may, on the application of a party to an order made under section 252CDA(1), vary the order as the High Court 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 252CDA(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 252CDA(1) includes a reference to the owner of the online location that is the subject of the order.”.