In March 2015 the Copyright Amendment (Online Infringement) Bill 2015 (pdf) was introduced to parliament and after just three months of consideration, the Australian Senate passed the legislation into law.
Soon after, copyright holders began preparing their first cases and in December 2016, the Australian Federal Court ordered dozens of local Internet service providers to block The Pirate Bay, Torrentz, TorrentHound, IsoHunt, SolarMovie, plus many proxy and mirror services.
Since then, more processes have been launched establishing site-blocking as a permanent fixture on the Aussie anti-piracy agenda. But with yet more applications for injunction looming on the horizon, how is the mechanism performing and does anything else need to be done to improve or amend it?
Those are the questions now being asked by the responsible department of the Australian Government via a consultation titled Review of Copyright Online Infringement Amendment. The review should’ve been carried out 18 months after the law’s introduction in 2015 but the department says that it delayed the consultation to let more evidence emerge.
“The Department of Communications and the Arts is seeking views from stakeholders on the questions put forward in this paper. The Department welcomes single, consolidated submissions from organizations or parties, capturing all views on the Copyright Amendment (Online Infringement) Act 2015 (Online Infringement Amendment),” the consultation paper begins.
The three key questions for response are as follows:
– How effective and efficient is the mechanism introduced by the Online Infringement Amendment?
– Is the application process working well for parties and are injunctions operating well, once granted?
– Are any amendments required to improve the operation of the Online Infringement Amendment?
Given the tendency for copyright holders to continuously demand more bang for their buck, it will perhaps come as a surprise that at least for now there is a level of consensus that the system is working as planned.
“Case law and survey data suggests the Online Infringement Amendment has enabled copyright owners to work with [Internet service providers] to reduce large-scale online copyright infringement. So far, it appears that copyright owners and [ISPs] find the current arrangement acceptable, clear and effective,” the paper reads.
Thus far under the legislation there have been four applications for injunctions through the Federal Court, notably against leading torrent indexes and browser-based streaming sites, which were both granted.
The other two processes, which began separately but will be heard together, at least in part, involve the recent trend of set-top box based streaming.
Village Roadshow, Disney, Universal, Warner Bros, Twentieth Century Fox, and Paramount are currently presenting their case to the Federal Court. Along with Hong Kong-based broadcaster Television Broadcasts Limited (TVB), which has a separate application, the companies have been told to put together quality evidence for an April 2018 hearing.
With these applications already in the pipeline, yet more are on the horizon. The paper notes that more applications are expected to reach the Federal Court shortly, with the Department of Communications monitoring to assess whether current arrangements are refined as additional applications are filed.
Thus far, however, steady progress appears to have been made. The paper cites various precedents established as a result of the blocking process including the use of landing pages to inform Internet users why sites are blocked and who is paying.
“Either a copyright owner or [ISP] can establish a landing page. If an [ISP] wishes to avoid the cost of its own landing page, it can redirect customers to one that the copyright owner would provide. Another precedent allocates responsibility for compliance costs. Cases to date have required copyright owners to pay all or a significant proportion of compliance costs,” the paper notes.
But perhaps the issue of most importance is whether site-blocking as a whole has had any effect on the levels of copyright infringement in Australia.
The Government says that research carried out by Kantar shows that downloading “fell slightly from 2015 to 2017” with a 5-10% decrease in individuals consuming unlicensed content across movies, music and television. It’s worth noting, however, that Netflix didn’t arrive on Australian shores until May 2015, just a month before the new legislation was passed.
Research commissioned by the Department of Communications and published a year later in 2016 (pdf) found that improved availability of legal streaming alternatives was the main contributor to falling infringement rates. In a juicy twist, the report also revealed that Aussie pirates were the entertainment industries’ best customers.
“The Department is aware that other factors — such as the increasing availability of television, music and film streaming services and of subscription gaming services — may also contribute to falling levels of copyright infringement,” the paper notes.