Late 2014, Attorney-General George Brandis and Communications Minister Malcolm Turnbull asked the Australian Cabinet to approve the development of a new system which would allow rightsholders to obtain site-blocking injunctions against ISPs. In March a draft of that legislation was introduced to parliament.
Since then the Copyright Amendment (Online Infringement) Bill 2015 has been under investigation by the Legal and Constitutional Affairs Legislation Committee. After examining the framework which allows rightsholders to apply for blocks against ‘pirate’ sites located overseas, this morning the Committee published a report that notes four recommendations but otherwise gives the legislation a green light.
When an application is made by a rightsholder for a blocking injunction, the Bill in its current form requires the Court to consider at least eight factors when determining whether an application should be granted. These include whether a site shows a general disregard for copyright, whether it has been blocked already in another jurisdiction, and the ‘flagrancy’ of any infringement.
Responding to rightsholder complaints that the bar had been set too high, alongside a belief that the thresholds for proving infringement had been narrowly established elsewhere in the Bill, the Committee advised an amendment from “is to take the following matters into account” to the watered down “may take the following matters into account”.
The recommendations also address VPNs, noting that “the Bill does not explicitly
contemplate the introduction of injunctions against VPNs”, adding that “VPNs are unlikely to meet the ‘primary purpose test’ [designed for infringing uses].” The Committee noted, however, that it would be “reassured” if the government clarified the status of such tools.
In respect of the “reasonable steps” ISPs will be expected to take in order to “disable access to an online location”, the Committee advised that these may include the posting of a landing page, similar to those currently used in the UK, which advise visitors that the site in question has been blocked alongside details of the order.
In another recommendation the Committee calls upon the government to provide greater clarity and guidance on the issue of costs and liability for ISPs after they comply with a court order to block a site.
“The committee urges the government to clarify its position regarding the
attribution of costs of compliance with orders where injunctive relief is granted,” the report reads.
“The committee notes the persuasive evidence of service providers to the effect that as [an ISP] bears no fault or liability for the infringement of copyright by its subscribers, [the ISP] should not be required to contribute to the cost of the remedy. The committee is of the view that more clarity is required to reassure [ISPs] that the costs associated with site-blocking will primarily be borne by those parties who are seeking the remedy.”
In other words, if rightsholders want to benefit from a site block, they should be the ones to pay for its implementation.
Finally, the Committee advises that the new legislation should be given an initial 24 months to do its work. At this point it should be re-examined to assess its performance.
“The committee recommends that the government conduct a formal review
of the effectiveness of the Copyright Amendment (Online Infringement) Bill2015, to be completed two years after its enactment,” the Committee concludes.
Dissenting Report – Australian Greens
In a second report published alongside the Committee’s this morning, Senator Scott Ludlam of the Australian Greens slams the Bill as the “latest in a long line of misguided attempts by the government to monitor, control and censor the Internet.”
Noting that the Bill hands “significant” new censorship powers to the court, Ludlam says that the evidence shows that it will be relatively easy to bypass the Bill’s provisions. Furthermore, the Bill lacks safeguards to ensure that legitimate online sources aren’t subjected to overblocking.
“Most importantly, there is also a significant weight of evidence showing that
the Bill will not meet its aims, as it does not address the underlying cause of online copyright infringement: The continual refusal of offshore rights holders to make their content available in a timely, convenient and affordable manner to Australians,” Ludlam concludes.