Debate on the Copyright Amendment (Online Infringement) Bill 2015

June 19, 2015

Australian art, music, literature, film and television are an integral part of our culture and contribute significantly to our economy. These things that we value do not exist without creators. These creators need incentives and rewards for their endeavours, and a robust copyright framework is needed to provide these incentives and rewards.

The advent of the internet has enriched society with the ability to access and share information and ideas to an unprecedented degree. Digital disruption, globalisation, convergence and mass connectivity are upheaving the world around us and fundamentally changing the way we work, interact and are entertained. To get a sense of the pace, think that just 10 years ago the first video was uploaded on YouTube, and Android was a small start-up that Google had just acquired. No-one had a smartphone. Today, 300 hours of video is uploaded onto YouTube every minute. On the one hand, the internet is a platform that innovative businesses have exploited to provide consumers with a great variety and choice of content and ways to access copyright; however, on the other hand, the rapid growth of the internet has brought significant challenges to the protection of copyright due to the ease with which material can be digitally copied and shared at little or no cost.

Overall, in net terms the internet has been a very positive development, with profound social, educational and economic benefits. This is, without any doubt, the most exciting time in human history to be alive, and the internet is a very, very substantial part of that excitement, of that sense of disruption and change and innovation and excitement. But it has also caused some people to treat all content online as something that they are entitled to access for free, regardless of the views or the rights of the owner. This attitude has been extended to creative works produced by artists, actors, directors, producers and writers, who rely on copyright protection to make a living and to fund the production of new works. Unfortunately, those who wish to access infringing-copyright material currently have the means to do so easily and freely.

There is no silver bullet to deal with internet piracy, but the Copyright Amendment (Online Infringement) Bill 2015 provides an important part of the solution to the problem of online copyright infringement. It is vital that copyright owners have an efficient mechanism to disrupt the steady supply of infringing content to Australian internet users from overseas based websites. This bill will provide an enhanced, streamlined mechanism that enables infringing material to be blocked by a carriage service provider—an internet service provider—without the need to establish fault on the part of that provider. Specifically, the bill will introduce a new provision that allows a carriage service provider to disable access to infringing online locations located outside Australia.

The bill contains a number of safeguards to ensure that the power does not unduly encroach on other important public and private interests. First, the provision will only capture online locations where it can be established that the primary purpose of the location is to infringe, or facilitate the infringement, of copyright. As I made clear in my second reading speech, these amendments are designed not to apply to virtual private networks, or VPNs, that are promoted or used for legitimate purposes. VPNs have a wide range of legitimate purposes, not least of which is the preservation of privacy—something which every citizen is entitled to secure for themselves—and they have no oversight, control or influence over their customers' activities.

I have used the example of an Australian using a VPN to create the impression that they were located in the United States so that, when the American site saw the IP address, they would see a US IP address. This Australian could then—and this is widely done—purchase the content in the normal way with a credit card. The owner of the Australian rights to the content so acquired might well be quite unhappy about that, but they could take a remedy against the American site or the underlying owner of the rights. This bill does not apply to a site like this. It is not intended to apply to VPNs.

Where someone is using a VPN to access, for example, Netflix from the United States to get content in respect of which Netflix does not have an Australian licence, this bill would not deal with that, because you could not say that Netflix in the United States has as its primary purpose the infringement, or facilitation of the infringement, of copyright. This is a very important point to make. If Australian rights owners have got issues about American sites selling content to Australians in respect of which they do not have Australian rights, they should take it up with them. The big boys can sort it out between themselves and leave the consumers out of it.

The second safeguard is the broad range of factors that reflect competing public and private interests that a court can take into consideration, and those factors include, for example, the flagrancy of the infringement or its facilitation; whether blocking access to the online location is a proportionate response in the circumstances; and the overall public interest.

The Senate Legal and Constitutional Affairs Legislation Committee has recommended that the bill be passed subject to four recommendations for improvement. The government thanks the committee for its deliberations and has accepted all of these recommendations, which have been addressed by the amendments to the bill and the explanatory memorandum that I am tabling today. The government has introduced an amendment to the bill which would give the Federal Court discretion to take into account specified matters in deciding whether to grant an injunction—rather than being required to take these matters into account—and what weight to place on these factors. This is consistent with the approach normally taken by a court in assessing whether to grant an injunction.

The government also proposes, in light of the committee's recommendations, two amendments to the explanatory memorandum. The first clarifies that appropriate orders that the Federal Court may make in granting an injunction could include a requirement that parties set up a landing page to which subscribers will be diverted if they try to access a disabled online location.

The second clarifies that, consistent with case law, carriage service providers should not be exposed to legal actions by subscribers as a result of acts or omissions in compliance with an order and that the court has discretion to make appropriate directions on the costs of implementing an order.

A further amendment proposed is to clarify the operation of the primary purpose test. Specifically, an online location could have the primary purpose of copyright infringement even if it operates in such a way that it derives profits from advertising revenue.

The government has also committed to review the operation of the bill 18 months after its commencement. I want to stress this point that I made earlier: we recognise that we are living in a very dynamic and disruptive environment, powered in large measure by the internet. We believe this is a very good policy response to this problem of internet piracy. We are comforted by the fact that the opposition is supporting the bill, and I want to acknowledge the support and constructive collaboration that the Attorney-General and I have had from the shadow Attorney-General, the member for Isaacs; and the shadow communications minister, the member for Blaxland. If this bill does not work as well as we would like, we will look at it again.

Both sides of politics have to recognise that the objective is to ensure that the creative industries that the member for Griffith was speaking about only a moment ago are fairly rewarded for their efforts and that online piracy is brought to an end, so we have to be very agile in our approach to this. This is a good set of measures. It is the best model we have at the moment, but, if it does not achieve its objectives, we have got to be prepared to come back and change it. That is why we are committed to reviewing the operation of the bill 18 months after its commencement.

The bill is not intended to operate in a vacuum. The availability of content that is timely and affordable is a key factor in the solution to online copyright infringement. When infringing sources of content are disrupted, this disruption will be most effective if Australian consumers have legitimate sources to turn to that provide content at competitive prices and at the same time that it is available overseas. Furthermore, the industry code negotiated by internet service providers and rights holders is intended to provide a mechanism to inform Australian consumers of legitimate sources of content. The industry are in final negotiations around how that code will be paid for and implemented, and the ACMA is currently considering whether to register this code.

In conclusion, the bill provides an effective contribution towards addressing the longstanding problem of online copyright infringement and it does so in a proportionate and balanced way that takes into account other important public and private interests. It was the result of extensive consultation and it complements other initiatives by industry. I want to thank all honourable members who have contributed to this debate for their contributions, and I commend the bill to the House.

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