With the Copyright Amendment (Online Infringement) Act 2015 receiving royal assent, Australia joins a number of nations with a process for rights holders to block sites the infringe (or facilitate the infringement of) copyright.
The first cases are expected soon, when we will be able to see how the new powers work in practice. The results overseas have been mixed, with some issues around over-blocking and scope creep in the UK, and the Dutch courts reversing blocking orders because they were ineffective. In Singapore we are still waiting for a case to conclude to have a better idea of how the scheme will work.
The driving hopes behind the bill are that it will reduce the level of piracy in Australia, as Communications Minister Malcolm Turnbull said in addressing the bill:
Creators need incentives and rewards for their endeavours, and a robust copyright framework is needed to provide these incentives and rewards.
Expanding on why website blocking was an appropriate response, Parliamentary Secretary to the Minister for Communication Paul Fletcher:
There are a number of foreign based websites that disseminate large amounts of infringing content to Australian internet users, and presently they are able to operate, in practical terms, without disruption, and their operators can secure a profit from facilitating the streaming and downloading by end users of infringing copies of audiovisual material.
Content being provided on reasonable conditions to Australians remains an issue though, Labor MP Terri Butler:
Last year the research firm Essential Media Communications undertook research that indicated that 79 per cent of Australians are concerned about being charged significantly more than their US counterparts for digital products and 58 per cent were concerned that movies and TV shows were available for legal download in other countries but not in Australia… Price discrimination in relation to digital content continues to affect Australian households.
Labelling the bill ‘tough on piracy, not on the causes of piracy’ Labor MP Ed Husic laid down a challenge to rights holders:
You have not once heard a rights holder say that if they get major gains in reducing piracy this will flow through to better prices and better accessible content. I dare them to actually say it. They will not do it. They will not respond to consumers. They will spend their time lobbying for legal responses to market failure, and the legislation reflects a government attitude and an attitude of extreme rights holder attitudes that will not respect that consumers, when they are given choice with content, will pay for content and will pay for better content.
Delving more specifically into the substance of the bill, Green Senator Scott Ludlam labelled the bill ‘lazy and dangerous’, expanding:
It is dangerous because it does create the architecture of a second internet filter in this country. Senator Collins referred to it a couple times as modest. Perhaps it is a modest little filter, but from little things big things grow.
LDP Senator David Leyonhjelm labelled it bad law, outlining a list of concerns:
First, it has inadequate protections for freedom of speech and freedom of access to information, which could result in access to legitimate content being blocked. Affected parties such as consumers and institutions are unable to seek revocation or review of injunctive orders. There is no extension of safe harbours, which would provide rights holders with a simple way to take down infringing material, or for ISPs to distinguish themselves from a copyright infringer using their services. There is no oversight nor any indemnities to track and protect against overblocking or other technical issues. There is a serious possibility that online tools and dual purpose sites such as VPNs, cloud storage, URL shorteners and compression tools may be blocked.
A number of amendments moved by the Australian Greens aimed at clarifying the scope of the bill and increasing consumer protections were voted down, and the bill passed with the support of both major parties.
Only one welcome amendment was passed, a Labor party amendment requiring the government to respond to the ALRC’s Copyright and the Digital Economy report by 17 September 2015.
Now that Australia has the ability to block overseas website hopefully the reforms necessary to allow site to be hosted domestically will follow speedily.
Originally published on Australian Digital Alliance. Republished with permission.