Bills Digest no. 107 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Mary Anne Neilsen
Law and Bills Digest Section
14 May 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 26 March
2015
House: House of
Representatives
Portfolio: Attorney-General
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Copyright Amendment (Online Infringement)
Bill 2015 (the Bill) is to provide a new mechanism to protect the
interests of copyright holders by enabling online infringing material to be
blocked by a carriage service provider without the need to establish fault on
the part of that provider.
The Bill amends the Copyright Act 1968[1] to enable rights holders to apply for a court
order requiring carriage service providers to block access to a website,
operated outside of Australia that has the primary purpose of
infringing copyright or facilitating the infringement of copyright.
At the outset it is useful to clarify that in the discussion
of online copyright infringement the terms internet service provider (ISP) and
carriage service provider (CSP) are often used interchangeably. The Bill uses
the term CSP and relies on the definition in section 87 of the Telecommunications
Act 1997.[2] Depending on the context
of the discussion, this Bills Digest uses both terms.
Copyright is concerned with encouraging the creation and
dissemination of works of art and intellect, but also acknowledges that there
are appropriate limits to the rights of copyright holders. Retaining a balance
between the various interests has always been difficult and has become more so
in the digital age.
Copyright protection is provided under the Copyright
Act and gives the holder of copyright exclusive rights to license others in
regard to copying a work, performing it in public, broadcasting it, publishing
it and making an adaptation of the work. Rights vary according to the nature of
the work. Those for artistic works, for instance, are different from those for
literary and musical works.[3]
The Australian Law Reform Commission (ALRC) in its 2013 report,
Copyright and the Digital Economy,[4]
considered an extensive range of challenges facing copyright in the digital age,
making recommendations including a new fair use exception for copyright.[5]
The courts too, in a number of recent challenging decisions, have had to
grapple with issues such as cloud computing, time shifting, web-based
retransmission of broadcasts and liability of ISPs for copyright infringement.[6]
The Government is yet to respond to the ALRC report. In the
meantime it is addressing online piracy, focusing particularly on ways of
imposing increased responsibility on ISPs.
On 30 July 2014, the Attorney-General, Senator George
Brandis, and the Minister for Communications Malcolm Turnbull, released a
discussion paper on online copyright infringement (the Discussion Paper) and
called for feedback and submissions.[7]
The Discussion Paper considered a number of proposals
namely:
1.
amending the Copyright Act to clarify the
application of authorisation liability under sections 36 and 101 to ISPs and looking
to industry to develop an industry based scheme or code[8]
2.
introducing mechanisms for blocking infringing
sites and
3.
extending the safe harbour provisions to service providers other
than ISPs (such as universities and schools).[9]
In relation to the second of these proposals
the Discussion Paper proposed that the Copyright Act be amended to
enable rights holders to apply to a court for an order against ISPs to block
access to a website operated outside Australia, the dominant purpose of which
is to infringe copyright. The proposal was limited to websites operated outside
Australia as rights holders are not prevented from taking direct action against
websites operated within Australia.[10]
Following this consultation, on 10 December
2014, the Attorney-General and the Minister for Communications announced that
the Government had chosen ‘the least burdensome and most flexible’
approach; requiring industry leaders to develop an industry code. The code would
include a process to notify consumers when a copyright breach has occurred and
provide information on how they can gain access to legitimate content (part of
proposal one from the Discussion Paper).[11]
The Ministers also flagged that in 2015 the
Government would introduce legislation to amend the Copyright Act,
to enable rights holders to apply for a court order requiring ISPs to block
access to a website, operated outside of Australia, which provides access to
infringing content (the second proposal in the Discussion Paper discussed above).[12]
The Bill takes up this second proposal with some
amendments based on input from Discussion Paper submissions.
Senate Legal and
Constitutional Affairs Legislation Committee
The Bill has been referred to the Senate Legal and Constitutional
Affairs Legislation Committee for inquiry and report by 29 May 2015 (the Senate
Committee inquiry). Details of the inquiry are available here.[13]
Senate Standing Committee for the
Scrutiny of Bills
At the time of writing, the Committee has not commented on
the Bill.
Parliamentary Joint Committee on
Human Rights
At the time of writing, the Committee has not commented on
the Bill.
In response to the December 2014 Government announcement
referred to above, the Shadow Minister for Communications, Jason Clare, and
Shadow Attorney-General, Mark Dreyfus, issued a statement saying that the
Government has yet to develop a credible policy to deal with internet piracy:
It is clear that action is needed both to deter piracy, and
to encourage access to legitimate content.
The Government has passed the buck back to industry, asking
rights holders and ISPs to reach an agreement among themselves. Malcolm
Turnbull and George Brandis have still not settled key issues raised in the
Discussion Paper they released in September. The Government has not made clear
what steps an ISP should take to deter piracy and who will bear the costs of
those steps.[14]
In relation to website blocking, the subject of this Bill,
Mr Clare and Mr Dreyfus stated:
The Government’s only concrete decision is to introduce
legislation providing for overseas websites facilitating copyright infringement
to be blocked in Australia by court order. Site-blocking is unlikely to be an
effective strategy for dealing with online piracy. Pirated content is likely to
reappear as quickly as it can be taken down.
Any crackdown on the infringement of copyright needs to be
accompanied by changes to make copyright law fairer, clearer, and more in
keeping with public expectations. The Government should look after the
interests of consumers.[15]
The Australian Greens have indicated they would not
support the Bill. Senator Scott Ludlam stated ‘such a move would be a defacto
Internet filter and would allow rights holders to unilaterally require websites
to be blocked. This kind of Internet filter would not be effective at all due
to the widespread availability of basic [virtual private network] VPN software
to evade it’.[16]
The interest that the Bill has generated is evident in the
large number of submissions received by the Senate Committee inquiry. The 49 written
submissions include a diverse range of views about the benefits and
shortcomings of the Bill from groups representing rights owners and creative
industries, internet service providers, consumer groups, legal bodies, academic
institutions and public interest advocates.
To give a sense of the diverse range of views, this
section of the Bills Digest refers to only a selection of these submissions.
Further comments are included in the ‘Key issues and provisions’ section below.
Generally rights holders groups are supportive of
legislation enabling site blocking injunctions but a number express concern
that the threshold tests in the Bill have been set so high to make the scheme
practically unworkable. On the other side of the argument groups representing
ISPs, consumers and public interest groups, while not condoning internet
piracy, question whether the Bill is an effective response to the problem and
also argue that site-blocking regimes can negatively impact upon internet
freedom, innovation, and competition.[17]
For example the collective submission from the Australian
Film/TV Bodies[18]
supports the Bill stating that the no‑fault injunction remedy is an ‘appropriate
response to the reality of the way in which online infringement needs to be
addressed’.[19]
The submission also notes that the response is in keeping with a number of
other countries including Singapore and European Union member countries such as
the United Kingdom where, it says, site blocking injunctions have proven to be technically
feasible and effective. In regard to the UK scheme the submission argues:
... although some users in the UK continued to engage in
illegal downloading by using dedicated and multi-site proxies to circumvent
judicial relief orders, that traffic was insignificant when compared to the
overall decline in traffic to the blocked piracy site.[20]
Nevertheless the submission argues there is scope for
improvement of the Bill—some of the more specific recommendations relating to
the impact of the high threshold test and the large number of factors that a court
must consider before granting a site blocking injunction.
Two copyright collecting societies, the Australian Performing
Rights Association (APRA) and Australian Mechanical Copyright Owners Society
(AMCOS) made a joint submission.[21]
They welcome the proposed amendment as ‘one that will provide significant benefit
to the creation of Australian content, as well as to the Australian economy’.[22] The Bill, in their view, ‘clearly
reflects the Government’s even-handed approach to mediating competing
interests’.[23]
APRA and AMCOS also point to studies showing that site-blocking
schemes in overseas jurisdiction have been effective in the fight against
online piracy.[24]
The Australian Copyright Council is broadly supportive of
the Bill as one part of the Government’s strategy to address online copyright
infringement. However the submission raises a number of the procedural features
that in its view will limit the Bill’s effectiveness; for example, the high
threshold test regarding infringement and the restrictions on the Court’s
discretion when deciding whether to grant injunctions. Like some other rights
holder groups, the Council also queries why the Federal Circuit Court has not
been given jurisdiction to deal with site blocking injunctions, noting that the
Federal Circuit Court otherwise has jurisdiction to grant injunctions in
copyright matters.[25]
The Communications Law Centre, University of Technology Sydney,
(CLC) broadly supports the measures set out in the Bill but states that it is
clear that these cannot, alone provide a full solution to the problem of online
copyright infringement in Australia.[26]
The CLC also supports the implementation of the Copyright Notice Scheme
Industry Code currently being reviewed by the Australian Communications and
Media Authority (ACMA). It further welcomes continuing action by copyright
owners to make content globally accessible and affordable.[27]
The Internet Society is critical, arguing the drafting of
the Bill is imprecise in a range of areas that will potentially impact
negatively on ISP and their customers. They state:
We do not believe that the legislation will necessarily
achieve the Government’s stated aims... It will not prevent access to a vast
array of allegedly infringing material available on the Internet either because
it is delivered by means other than the ‘web’, because the URL of the material
varies with each access, or because many users bypass the systems ISPs might
use to control access.[28]
And:
The Bill will impose a cost on Carriage Service Providers and
that cost no doubt will be passed on to consumers – at a time when CSPs and
their customers are already facing significant expenses to comply with the data
retention legislation.[29]
The Internet Society is further concerned about the
possibility of CSPs blocking access to legitimate material that should not be
subject to this Bill simply due to the risk of high costs in appearing in court
to defend demands to do so.[30]
The Australian Digital Alliance (ADA) agrees that reduction
in internet piracy is a laudable objective, and is ‘not opposed to a judicial
process for issuing injunctions against overseas websites that flagrantly
infringe copyright, as long as the power is appropriately targeted in scope and
has adequate safeguards that reflect each of the interests at stake’.[31]
However ADA states this is not the case with the Bill and argues:
The Bill as presented has deficiencies in drafting that could
lead to legitimate sites being blocked. In order to ensure that genuinely
unlawful sites are targeted, we recommend that the definition for infringing
websites in s115A(1) is tightened and additional safeguards are added to
s115A(5). Sites that may fall under the definition as currently formulated
include overseas providers of VPNs, cloud storage providers, providers of
Internet Relay Chat (IRC) or Bit Torrent software, as well as some general
hosting sites that may host a mixture of infringing and non-infringing works.[32]
The New South Wales Council of Civil Liberties (NSWCCL)
does not regard website blocking as a proportionate response to copyright
infringement and therefore believes the Bill ought not to be passed. The
submission states:
The position of the NSWCCL is that website blocking should
not be undertaken in a society which cherishes the right to free speech. It is
a disproportionate response to the problem of copyright infringement. To
alleviate the problem of copyright infringement, the least intrusive means of
achieving this ends is the most preferred. A de-facto internet filter, which
this legislation is, is one of the most intrusive ways to discourage piracy on
the internet. It is also the method which is most prone to accidental
blockages, intentional censorship, scope creep or other abuse.[33]
However as an alternative to not passing the Bill, NSWCCL
offers amendments to address the civil liberties concerns that the Bill raises,
some of these are discussed under the ‘Key issues and provisions’ section
below.
The Australian Communications Consumer Action Network (ACCAN)
supports effective and proportionate efforts to prevent online piracy but raises
a number of concerns about the reach and effectiveness of the Bill. One of its
main concerns relates to Virtual Private Networks (VPNs) and how they might be
affected under the proposed scheme. The submission states that many Australian consumers are already using VPNs to
access content that is geo-blocked in Australia, but there is much ambiguity
around the legality of this. ACCAN therefore argues that the Bill is an
opportunity to clarify the status of VPNs so that these services are not
themselves subject to blocking, thereby limiting consumer access to paid
overseas content.[34]
ACCAN also recommends that the Government conduct a cost
benefit analysis of the Bill before it is implemented and again after 18 months
of operation, noting that Dutch research found that site blocking against file
sharing often has an immediate effect, but this fades out after a period of six
months as new sources of pirated material emerge.[35]
ACCAN’s concern is that this website blocking Bill may
devolve into an expensive game of ‘whack-a-mole’ which consumers will end up
paying for through higher internet bills.[36]
The Business Law
Section of the Law Council of Australia had previously submitted that the site
blocking proposal in the Discussion Paper should not go ahead, arguing that it
lacked appropriate protections for consumers or innocent websites.[37]
However, as the terms of the Bill have made some changes to the initial
proposal, the Law Council has a new view and is therefore broadly supportive.[38]
Nevertheless the Law Council still has some concerns and comments, some of
which are discussed below under the ‘Key issues and provisions’ heading.
The Law Institute
of Victoria supports the underlying objective of the Bill which aims to reduce
the incidence of online copyright infringement. However it believes that great
care should be taken when considering any proposed amendment to the law that
involves the blocking of access to websites or other ‘online locations’.
A court ordering an injunction that is too broad or an ISP
inadvertently blocking access to a site that does not infringe copyright or
facilitate the infringement of copyright may impact on the rights to access to
information and freedom of expression, as well as potentially interfere with
the property rights of owners of any websites inadvertently blocked.[39]
In terms of technical concerns regarding site blocking,
the Law Institute and other submitters point to problems with the operation of
the blocking powers in section 313 of the Telecommunications Act.[40]
In 2013, the Australian Securities and Investments Commission (ASIC) requested
a number of ISPs to block access to sites said to be used for investment fraud.
An internal review found that this erroneously led to the blocking of more than
250,000 websites that hosted ‘no substantive content’ related to ASIC
investigations.[41]
The House of Representatives Standing Committee on Infrastructure
and Communications is currently inquiring into the site blocking powers
under section 313 of the Telecommunications Act. The inquiry website is
available here.[42]
The Committee is due to report on 1 July 2015.The Law Institute recommends that
the Senate Committee inquiry into this Bill delay reporting until it can be
informed by the technical evidence and findings of that inquiry.
Communications Alliance supports the underlying objectives
of the Bill but believes it is deficient in several respects. It argues that
the Bill requires amendment to:
- ensure
consistency with the principles put forward by the Government in its original discussion
paper? on the issue (in particular with regard to cost and indemnity issues)[43]
- achieve
the Government’s stated objectives and
- reduce
the risk of undesirable and unintended consequences.[44]
In relation to technical concerns, Communications Alliance
recommends a range of technical amendments including:
- clarification that the method used by an ISP to block access to a
website (e.g. at the level of the Domain Name System (DNS), the IP address, the
URL or another means) is at the discretion of the ISP;
- appropriate checks to be undertaken by rights holders before web
sites are blocked, to reduce the risk of legitimate web sites being blocked
inadvertently;
-
provision for a ‘landing page’, hosted by rights holders so that
internet users attempting to access a court‑ordered blocked site will be
directed to this page and see an explanation as to why the site was blocked and
where they can seek further information;
-
provide more detailed guidance to the courts that will need to
interpret the legislation and ensure that technical guidance is available to
Courts, where required; and
-
allow an application to be brought, or an order to be made,
against more than one ISP, to prevent customers from swapping ISPs to avoid the
effect of an injunction.[45]
The Bill should have no financial implications for
Government, although there would be costs for both copyright owners and CSPs.
The Explanatory Memorandum states that the introduction of the injunction power
was the subject of a short-form regulation impact statement which estimated a
total cost of $130,825 to CSPs on an annual basis.[46]
It is of note that the usual practice of including a
regulation impact statement in the Explanatory Memorandum has not been followed
with this Bill. A number of submissions question why this statement is not
publicly available with some also calling for a full cost benefit analysis
before the Bill is implemented.[47]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[48]
Provisions
Item 1 in Schedule 1 to the Bill is the key
provision and inserts a new section 115A into the Copyright Act.[49]
New subsection 115A(1) provides that the Federal
Court of Australia may, on application by the owner of a copyright,[50]
grant an injunction to require a Carriage Service Provider[51]
(CSP) to take reasonable steps to disable access to an online location. In
order to grant the injunction the Court must be satisfied that:
- the
CSP provides access to an online location outside Australia
- the
online location infringes, or facilitates an infringement of the copyright and
- the primary purpose of the online location is to
infringe, or to facilitate the infringement of, copyright (whether or not in
Australia).
New subsection 115A(3) provides that the parties to
an action requesting an injunction to block an online location are:
- the
owner of the copyright
- the
CSP
- the
person who operates the online location (that is the alleged infringer) but
only if that person applies to the Court to be joined as a party.
The CSP is not liable for any costs of proceedings unless
they take part in them (proposed subsection 115A(9)).[52]
An injunction granted under section 115A may upon
application from a party to the proceedings or a person prescribed by the
regulations be varied or rescinded by the Federal Court (proposed
subsections 115A(7) and (8)).
In determining whether to grant the injunction, the Court is to take into account a list of
matters in proposed subsection 115A(5). The list which is
non-exhaustive and mandatory for the Court to follow consists of:
(a) the flagrancy of the infringement, or the flagrancy
of facilitating the infringement
(b) whether the online location makes available or
contains directories, indexes or categories of the means to infringe, or
facilitate an infringement of, copyright
(c) whether the owner or operator of the online
location demonstrates a disregard for copyright generally
(d) 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
(e) whether disabling access to the online location is a
proportionate response in the circumstances
(f) the impact on any person, or class of persons,
likely to be affected by the grant of the injunction
(g) whether it is in the public interest to disable
access to the online location
(h) whether the owner of the copyright had notified the
operator of the online location as required under subsection 115A(4)
(i) any other remedies available under the Copyright
Act
(j) any other matter prescribed by the regulations
(k) any other relevant matter.
Issues
As noted above, proposed subsection 115A(1) requires
that before granting an injunction the Court is to be satisfied that the
primary purpose of the online location is to infringe copyright or facilitate
infringement of copyright. Submitters to the Senate Committee inquiry into the
Bill raised a number of issues about the wording of this provision.
The Explanatory Memorandum states that the ‘primary
purpose’ test is an intentionally high threshold for the copyright owner to
meet and is set high as a safeguard to ensure the provision cannot be used to
target online locations that are mainly devoted to a legitimate purpose.[53]
The Explanatory Memorandum gives two examples of what the Bill is aiming not
to catch— an art gallery website operated outside of Australia which may
contain an unauthorised photograph and secondly, an overseas online location
that provides legitimate copyright material to individuals within another
geographic location but is not licensed to distribute that copyright material
in Australia (for example the US iTunes store). These it is argued would not be
caught by the provision because their primary purpose is not to facilitate
infringement.[54]
The Communications Law Centre, along with many rights holder
groups, is concerned that the primary purpose test sets an unworkably high
threshold. It recommends that there should be a ‘purpose’ rather than a
‘primary purpose’ test. This would lessen the evidentiary burden faced by
copyright owners, without substantively impacting upon the Bill’s safeguards
for legitimate overseas sites, or sites that inadvertently infringe.[55]
Similarly, the collective submission from the Australian
Film/TV Bodies argues that the primary purpose threshold is likely to be highly
problematic in practice based upon the experience of the interpretation of
other purpose based provisions under Australian law:
In the analogous field of competition law, cases seeking to
rely on proof of purpose have often been unsuccessful, because of the
reluctance of a Court to impute purpose where the allegation is serious and
there is no direct proof of the state of mind of the party. The High Court has
observed that the test of a provision using the language of purpose is a
subjective one, rather than an objective test.
If s115A(1) is interpreted as requiring proof of a subjective
purpose of the overseas website then the threshold may be difficult to meet in
practice. The site operators are likely to be located outside the jurisdiction,
as would their records (which might typically provide direct evidence of
purpose in the form of unguarded communications). There may be no direct proof
available of subjective purpose. The illegal status of the piracy website
ecosystem results in the vast majority of such site operators making every
effort to remain anonymous and to ensure that their ‘purpose’ is undeclared.[56]
APRA and AMCOS are also critical of the primary purpose
test and recommend replacing it with a ‘substantial purpose or effect test’.[57]
Meaning of ‘online location’
The term ‘online location’ is not defined in the Bill and
the Explanatory Memorandum states that the term is intentionally broad and
includes, but is not limited to, a website and would also accommodate future
technologies.[58]
Some rights holders groups argue that the term may not be
broad enough for an injunction to cover replicas of the same infringing website
popping up at different domains.[59]
However a number of other submissions were critical of the
broad nature of this term arguing that the term should be construed as narrowly
as possible in order to achieve the purposes of the Bill.[60]
The ADA suggests that the Explanatory Memorandum should be amended to provide
examples of what would be considered an ‘online location’ that judges may draw
upon by analogy.[61]
Communications Alliance recommends that the term ‘online
location’ be defined as it is not commonly used in internet parlance and unless
it is defined, risks being ambiguous:
Precision is important when describing what ISPs will be
asked to block, because unintended consequences can occur, particularly when
legitimate content is hosted alongside infringing content on the same domain
name or IP address. (e.g. blocking streamingmusic.blogspot.com will result in
every other blogspot account being blocked).[62]
‘Facilitate’ copyright
infringement
A number of submissions raise concerns about the word
‘facilitate’. The Law Institute of Victoria and the ADA, noting that the term
is not defined in the Bill, argue that it will therefore have an expansive
meaning with its ordinary meaning encompassing ‘make possible’. This inclusion
of ‘facilitate’ was not foreshadowed in the Discussion Paper and as the ADA has
argued, this addition ‘has the potential to encompass sites such as VPNs and
cloud storage providers.[63]
The Law Institute of Victoria argues:
A more proportionate approach would be to remove reference to
“facilitate” in s 115A(1), thereby limiting the power to websites that
infringe, copyright (either directly or indirectly by authorisation).
If this recommendation is not accepted, the Bill could be
amended to follow the model set out in the equivalent provision recently added
to Singapore’s Copyright Act. This provision required that the “facilitating”
be flagrant. Adding a similar requirement to proposed section 115A(1)(b) may
assist in minimising the possibility of sites which have substantial legitimate
uses from being captured by an overly broad order.
These new powers should not, for example, be able to be used
as an anti-competitive or anti-innovation measure against legitimate sites in
the online environment. Most small foreign online operators are unlikely to be
able to absorb the cost of participating in the proceeding to put evidence
before the court of the legitimate non-infringing uses of their site. Even with
the addition of this “flagrancy” factor, great care will still need to be taken
to ensure that blocking orders are a proportionate response and do not unduly
impair legitimate services.[64]
Variation of an injunction (proposed
subsection 115A(7))
As already noted, proposed subsection 115A(7) allows
the Court to vary injunctions. The Law Council argues that this provision needs
to be tightened to clarify its scope and to cope with the problems that will
inevitably face the Court where there are attempts by the operator of an online
location to subvert the orders of the Court by moving infringing content to
another electronic address. The Law Council recommends that an appropriate
procedure could be set up by a provision that specifically enables the Court to
make an order enabling the injunction to extend to any other location where, ‘following
blocking of an online location, substantially the same content is made
available at another location, but subject to prior notice given by the
copyright owner to the Court’.[65]
A number of submissions raise concerns about proposed
subsection 115A(9)—that CSPs will not be liable for costs unless they take part
in the proceedings. The Law Council is representative of a number of
submissions when it expresses concern that:
[...] this will provide a powerful incentive for carriage
service providers not to contest applications for such injunctions which may
well mean that such applications are not scrutinised with the care that such
significant orders should receive.
It should be borne in mind that the carriage service provider
is not the infringer targeted by this procedure, but is very much playing an
ancillary role.[66]
A further matter raised in regard
to costs is that the Bill does not address the question of who should pay the
costs of implementing an order to block access to a third party website—the
right holder or the CSP. While the Discussion Paper proposal had suggested that
‘rights holders would be required to meet any reasonable costs associated with
an ISP giving effect to an order and to indemnify the ISP against any damages
claimed by a third party’[67],
the Explanatory Memorandum to the Bill in fact suggests that the CSP is to pay.
The Law Council and others argue that an order that the
CSP bear the costs of implementing an order will impose a cost that will be
passed on to all users of the CSP’s service. That is, the costs order will
essentially act as a tax on all users, not just infringers.[68]
Communications Alliance submits that it had given cautious
support to the website blocking proposal, partly on the basis of the assurances
from Government that rights holders would meet the costs associated with the
scheme. Its submission also notes that:
Initial feedback from Government officials as to the absence
of these elements in the Bill has suggested that these matters would be dealt
with by the Court on a case-specific basis when considering injunctive
applications.
Even if this were to be the case, the Government’s stated
intentions on this issue should be clearly spelled out in the Bill and the
associated Explanatory Memorandum, so that the Court has the benefit of a clear
indication of the Government view.[69]
Communications Alliance also observes that:
When ISPs or other Carriage Service Providers or Carriers are
required to undertake tasks in response to requests from law enforcement or
national security agencies (LENSAs) under s.313 and 314 of the Telecommunications
Act 1997, they are entitled to recover their costs from those agencies. The
same principle should apply to the implementation costs that ISPs will incur as
a result of the Bill and ensuing injunctions.[70]
On the other hand, the Arts Law Centre of Australia
believes the costs should be treated as a cost of the CSP doing business in the
online environment. The Centre also argues that because they generate income
from providing internet access, it is CSPs that have the primary responsibility
for ensuring their services are not used to defeat the policy objectives of the
copyright legislation.[71]
The Australian Film/TV Bodies have a similar view arguing
that requiring rights holders to meet any costs of an ISP is:
... disproportionate, unnecessary, out of step with
international practice and contrary to the fundamental principles of copyright
law. As the site blocking decisions in the UK have demonstrated, the costs of
complying with an injunctive relief order are not excessive or onerous, and
that ISPs can deploy existing technology that they are already using to do so.[72]
List of matters for consideration
by the Court (proposed subsection 115A(5))
Proposed subsection 115A(5) provides a list of 11
mandatory factors the Court must take into account when determining whether to
make an order. This provision was a matter of discussion in many submissions to
the Senate inquiry, a common theme being that the long list of factors that the
Court must take into account places unnecessary fetters on the ability of a court
to make appropriate decisions on the evidence before it.
The Law Council represents the view of many submitters
when it recommends that:
... given the jeopardy that is created by mandatory
consideration of many factors including ‘other relevant matters’, the Court
should be expressly empowered to give such weight as the Court considers
appropriate to relevant (including listed) matters.[73]
Expressing a similar view APRA and AMCOS’s position is that
obligating the courts to consider matters that may not, in the circumstances,
warrant consideration is undesirable:
The list in proposed section 115A(5) also serves to act as a
list of costly hurdles for copyright owners to overcome in order to protect
their rights.[74]
The Australian Recording Industry Association (ARIA) and
Music Rights Australia (MRA) both suggest that either the list of factors in
subsection 115A(5) be completely deleted, or alternatively, some of the 11
factors should be deleted, in particular, paragraphs 115A(5)(c), (d), (g), (i)
and (j).[75]
‘Public interest test’
Some of the specific factors for consideration listed in proposed
subsection 115A(5) were also discussed in submissions, the ‘public interest’
test in paragraph 115A(5)(g) in particular, drawing considerable comment.
The public interest test (whether it is in the public
interest to disable access to the online location) was added following feedback
to the Discussion Paper. The Explanatory Memorandum explains that this matter
would invite the Court to take into account the public interest in the freedom
of expression, and other public interest issues such as, for example, access to
information.[76]
Rights owners groups such as APRA and AMCOS, ARIA and MRA
were critical of a public interest test noting that the legislation would not
have to direct a court to consider the public interest, where relevant, when
determining whether to exercise its discretion in favour of the application for
injunctive relief. Rather the public interest would naturally be at the
forefront of the Court’s mind. Further, obligating the Court to consider the
public interest is likely to force the Court to entertain unhelpful amicus
briefs.[77]
The Australian Film/TV Bodies also state that such a test
is not appropriate, arguing it is a concept not applied under Australian
copyright law:
It is not a defence to copyright infringement or the remedies
that a Court may award a copyright owner that establishes copyright
infringement. The Copyright Act already strikes a balance between competing
interests of copyright owners and users, that reflects (indirectly at least)
what is in the public interest. The EM does not explain why there is any need
for an additional balancing concept.[78]
ACCAN acknowledges that a public interest test was added
following feedback to the Discussion Paper noting also that the addition
recognises that there are important interests outside of those held by the
parties to an action. However without a clear avenue for these interests to be
introduced ACCAN states that it is likely that they will be left to the judge
alone to decide. Therefore, ACCAN recommends that there be a presumption in
favour of allowing parties to become interveners or amicus curiae in the
context of these injunction applications.[79]
The Law Institute of Victoria recommends that proposed
section 115A(5) be amended to expressly require the Court to consider any
impact of a site-blocking order on freedom of expression.[80]
As the 2013 ALRC report on copyright showed, the digital
world has brought great challenges to the law of copyright. Of those many
challenges, it is the problem of online piracy that the Government has chosen
to prioritise and which this Bill is seeking to address.
The numerous and quite substantial submissions to the Senate
Committee inquiry into the Bill expressing a diverse range of views are
indicative of the complexities and the challenges of tackling enforcement of
online copyright infringement.
Undoubtedly online piracy is a serious problem with
significant economic consequences and in an increasingly sophisticated
technical environment, enforcement is difficult. That said, the remedy of site
blocking injunctions that the Bill is proposing is equally serious.
Generally rights holders groups are supportive of
legislation enabling site blocking injunctions but a number express concern
that the threshold tests in the Bill have been set so high to make the scheme
practically unworkable. On the other side of the argument groups representing
ISPs, consumers and public interest groups, while not condoning internet
piracy, question whether the Bill is an effective response to the problem and
also argue that site-blocking regimes can negatively impact upon internet
freedom, innovation, and competition.
The Government defends the Bill as providing an
intentionally high threshold for the copyright owner to meet as a safeguard to
ensure the provision cannot be used to target online locations that are mainly
devoted to a legitimate purpose.
As Associate Professor Kimberlee Weatherall has said in
defence of the Bill, it is important that the threshold is high because the
remedy that the Bill is proposing is ‘extraordinary’. Extraordinary, because it
involves, ‘actively blocking communications and preventing Australians from
seeing websites that would be available elsewhere in the world’. Extraordinary
also because it is unusual in our legal system to require innocent third
parties to act to enforce the legal rights of others, particularly when there
are to be no pending legal proceedings.[81]
In Professor Weatherall’s view, this remedy must therefore be exceptional and
restricted, targeting only the worst infringing websites.[82]
The challenge facing the Parliament is to determine firstly,
if site blocking injunctions are an appropriate remedy to combat online piracy
and if so, is the Bill well drafted to meet that need? Will the remedy be
effective and is the injunction power appropriately targeted in scope and does
it provide adequate safeguards that reflect each of the interests at stake? The
substantial submissions to the Senate Committee inquiry would suggest that
there is room for refinement.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Copyright Act 1968,
accessed 11 May 2015.
[2]. Section 10 of the Copyright Act defines carriage service
provider by reference to section 87 of the Telecommunications
Act 1997, accessed
13 May 2015. The definition in section 87 relates to supply of a ‘listed
carriage service’ ‘to the public’.
[3]. For more information about copyright generally see the website for IP Australia, accessed 8 May
2015.
[4]. Australian
Law Reform Commission, Copyright
and the digital economy, ALRC report 122, 13 February 2014, accessed 8 May 2015.
[5]. M Neilsen, ‘ALRC report released: copyright and the digital economy’, FlagPost, Parliamentary Library,
Canberra, 20 February 2014, accessed 11 May 2015. Fair use is a
defence to copyright infringement that essentially asks of any particular use:
Is this fair? In deciding whether a particular use of copyright material is
fair, a number of principles, or ’fairness factors’ must be considered.
[6]. M Neilsen, ‘Copyright: current issues in the digital environment’, Off the Shelf, Parliamentary Library,
Canberra, 1 December 2013, accessed 11 May 2015.
[7]. Australian
Government, Online
copyright infringement: discussion paper, Canberra, July 2014, accessed
4 May 2015.
[8]. The
authorisation provisions (sections 36 and 101) are
intended to create a legal incentive for service providers such as ISPs to take
reasonable steps to prevent or avoid copyright infringement where they are in a
position to do so. The code or scheme would set out what would constitute
reasonable steps to be taken by ISPs to prevent or avoid infringement.
[9]. The
purpose of the safe harbour provisions (sections 116AA to 116AJ of the Copyright
Act) is to give CSPs some protection from the otherwise unavoidable risk of
liability for inadvertently hosting or communicating copyright infringing
material on behalf of their users.
[10]. Australian
Government, Online
copyright infringement; discussion paper, op. cit., p. 5.
[11]. G
Brandis (Attorney-General) and M Turnbull (Minister for Communications), Collaboration
to tackle online copyright infringement, joint media release, 10
December 2014, accessed 11 May 2015.
[12]. Ibid.
[13]. Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, The
Senate, Canberra, 2015, accessed 12 May 2015.
[14]. J Clare, (Shadow Minister for Communications) and M
Dreyfus (Shadow Attorney-General), Government
fails to deliver policy on internet piracy, media release, 10
December 2014 accessed 11 May 2015.
[15]. Ibid.
[16]. S Ludlam, Industry code on copyright will not
address real problem, media release, the Australian Greens, 10 December
2014, accessed 11 May 2015.
[17]. M
Rimmer, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, May 2015, p. 10, accessed 11 May 2015.
[18]. The
collective name for the Australian Screen Association (ASA), the Australian
Home Entertainment Distributors Association (AHEDA), the Motion Picture
Distributors Association of Australia (MPDAA), the National Association of
Cinema Operators (NACO) and the Independent Cinemas Association of Australia (ICAA).
[19]. Australian Film and TV Bodies, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 16 April 2015, p. 4, accessed 11
May 2015.
[20]. Ibid., p. 7.
[21]. APRA
AMCOS, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 16 April 2015, p. 4, accessed
10 May 2015.
[22]. Ibid.,
p. 4.
[23]. Ibid.,
p. 4.
[24]. Ibid.,
pp. 2–3.
[25]. Australian
Copyright Council, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, April 2015, accessed 11 May 2015.
[26]. Communications Law Centre, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 16 April 2015, p. 1, accessed
11 May 2015.
[27]. Ibid.
[28]. Internet
Society, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 16 April 2015, p. 3, accessed 11
May 2015.
[29]. Ibid.,
p. 2.
[30]. Ibid.
[31]. Australian
Digital Alliance, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, April 2015, p. 1, accessed 11 May 2015.
[32]. Ibid.,
p. 1.
[33]. New South Wales Council of Civil Liberties, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 21 April 2015, pp. 3–4, accessed
11 May 2015.
[34]. Australian
Communications Consumer Action Network, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, April 2015, p. 5, accessed 10 May 2015.
[35]. Ibid.,
p. 7.
[36]. Ibid., p. 8.
[37]. Law
Council of Australia, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 21 April 2015, p. 1, accessed 11
May 2015. See also Law Council of Australian, Submission
to the Online Copyright Infringement discussion paper, 5 September 2014, accessed
10 May 2015.
[38]. Ibid.
[39]. Law
Institute of Victoria, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, April 2015, p. 2, accessed 10 May 2015.
[40]. Telecommunications
Act 1997, accessed 13 May 2015.
[41]. Ibid.,
p. 8.
[42]. House
of Representatives Standing Committee on Infrastructure and Communications, Inquiry
into the use of subsection 313(3) of the Telecommunications Act 1997 by
government agencies to disrupt the operation of illegal online services,
The House of Representatives, accessed 12 May 2015.
[43]. Cost
and indemnity issues are described under the heading ‘Key issues and provisions’.
[44]. Communications
Alliance, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 16 April 2015, p. 3, accessed 7
May 2015.
[45]. Ibid.,
p. 4.
[46]. Explanatory Memorandum, Copyright Amendment (Online Infringement) Bill 2015, p. 3, accessed 7 May 2015.
[47]. For
example the Australian Communications Consumer Action Network, op. cit., pp.
8–9. Note that there is further discussion of costs under the heading ‘Key
issues and provisions’ below.
[48]. The
Statement of Compatibility with Human Rights can be found at pp. 4–7 of the
Explanatory Memorandum to the Bill.
[49]. Copyright Act 1968,
accessed 11 May 2015.
[50]. Note
that by virtue of item 2 in Schedule 1 of the Bill an exclusive licensee
could also bring such an action.
[51]. Section 10 of the Copyright Act defines CSP by
reference to section 87 of the Telecommunications Act 1991. The
definition in section 87 relates to supply of a ‘listed carriage service’ ‘to
the public’.
[52]. The Explanatory Memorandum states that this provision
is not intended to alter Part 40 of the Federal Court Rules which provides for
the Court to make orders as to costs.
[53]. Explanatory Memorandum, op. cit., p. 9.
[54]. Ibid.
[55]. Communications
Law Centre, op. cit., pp. 2–3.
[56]. Australian Film and TV Bodies, op. cit., p. 12.
[57]. APRA AMCOS, op. cit., p. 6.
[58]. Explanatory Memorandum, op. cit., p. 8.
[59]. Australian
Copyright Council, op. cit., p. 2.
[60]. Australian
Digital Alliance, op. cit., p. 5.
[61]. Ibid.
[62]. Communications
Alliance, op. cit., p. 5.
[63]. Australian
Digital Alliance, op. cit., p. 1.
[64]. Law Institute of Victoria op. cit., p. 5.
[65]. Law
Council of Australia, op. cit., p. 2.
[66]. Ibid., p. 3.
[67]. Australian
Government, Online
copyright infringement; discussion paper, op. cit., p. 6.
[68]. Law
Council, op. cit., p. 3.
[69]. Communications
Alliance, op. cit., p. 6.
[70]. Ibid.
[71]. Arts
Law Centre of Australia, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 16 April 2015, pp. 2–3,
accessed 5 May 2015.
[72]. Australian
Film and TV Bodies, op. cit., p. 21.
[73]. Law
Council, op. cit., p. 2.
[74]. APRA AMCOS, op. cit., p. 11.
[75]. Australian
Recording Industry Association, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Copyright Amendment (Online Infringement) Bill 2015, 16 April 2015, p. 9, accessed
11 May 2015.
[76]. Explanatory Memorandum, op. cit., p. 11.
[77]. APRA
AMCOS, op. cit., p. 13.
[78]. Australian
Film and TV Bodies, op. cit., p. 17.
[79]. Australian
Communications Consumer Action Network, op. cit., p. 7.
[80]. Law
Institute of Victoria, op. cit., p. 6.
[81]. Senate Legal and Constitutional Affairs Legislation
Committee, Proof
committee Hansard, 1 May 2015, pp. 2–3, accessed 11 May 2015.
[82]. Ibid.
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