Controversial legislation that could see websites that ‘facilitate’ copyright infringement blocked looks likely to pass the Australian Parliament in the next fortnight after the LNP and ALP agreed to minor amendments.

The committee report notes that:

The committee takes the view that online copyright infringement poses a significant threat to the viability and success of Australia's creative industries.... the Bill should achieve its aim of targeting copyright infringement by online locations located outside Australia. The committee notes that the Bill does not purport to be a full solution to the problem of online copyright infringement

A strong dissent from the Green’s Senator Scott Ludlam labelled the plan as the:

latest in a long line of misguided attempts by the government to monitor, control and censor the Internet

This was echoed by consumer group CHOICE who are calling on people to stand up for digital rights, questioning the effects of the bill:

this isn’t just about stopping Pirate Bay - it covers sites for online tools like Virtual Private Networks (VPNs) that help consumers get around the ‘Australia tax’ and access legitimate content from overseas.

We’ve put together a quick explainer to navigate the bill, and answered some key questions below

So what are we talking about?

The Copyright Amendment (Online Infringement) Bill 2015

What will it do?

It allows rightsholders, or their licensees, to get a court order for ISPs to block access to certain overseas ‘online locations’

In order to get an injunction the court must be convinced that the primary purpose of the online location is to infringe, or “facilitate” the infringement, of copyright.  

So why are people worried?

Censoring the internet and restricting what sites Australians can chose to visit can restrict free speech and impact on businesses. As such, the remedy needs to be carefully targeted and have safe guards to prevent abuse. Even with the amendments proposed by the government a number of key worries remain.

• It will block legitimate sites

The key problem here is the term ‘faciliate’. Going on the dictionary meaning of the word (which is what judges do for undefined terms) any site that assists copyright infringement may be ‘facilitative’. Examples are easy to see, VPNs that people use to mask illicit torrenting, storage sites people use to hide pirated wares or programs to share large files.  Unfortunately, these are also sites that are used legitimately by many Australians.

Australian law already has a standard for when a site moves from merely assisting copyright infringement to ‘authorising’ copyright infringement. Using this doctrine peer-to-peer and linking sites have both been found liable for copyright infringement. It is not clear why we should now be able to block sites hosted overseas whose liability is less than the accepted legal standard. 

The problems of facilitate are somewhat mitigated by the appropriate standard of ‘primary purpose’ which as Minister Turnbull pointed out in his Second Reading Speech, will mean that sites such as US Netflix should not fall under the scheme.  

• There’s no right to appeal for people who are adversely affected

The injunction is primarily between the rights holder (whose material is being infringed) and the ISP (who is not a fault, but will enforce the injunction). The owner of the site may also chose to be a party (unlikely for overseas sites) and the court may also hear from others, such as public interest representatives.

However once the injunction is ordered, only parties to the original case or parties appointed by regulation can seek revocation or appeal.
As an example as to why this is worrying, say you are working in a cross-border research group that has stored huge data files in cloud facility. If that site is blocked (it is also heavily used by pirates you find out) you have no standing to ask the court for a review of that order, even though you may now not be able to access your data.

Will it work?

Unfortunately, the chances are not high.  One of the most comprehensive and rigorous evaluations of site blocking, from the European Commission’s Joint Research Centre, concluded that it:

led to significant but short-lived declines in piracy levels. The existence of alternative sources of unlicensed consumption, coupled with the rapid emergence of new platforms, led the streaming piracy market to quickly recover from the intervention and to limited substitution into licensed consumption. 

And the biggest issue? It misses the main point

In a recent op ed, Labor MP Ed Husic argued

the time has well and truly come for rights holders and content providers to tackle the root cause of digital piracy: an old-world, pre-digital mentality that believes you can carve up the world into regional fiefdoms, delay the release of your product, or charge whatever you can for that product, regardless of consumer discontent.

Similarly EU Vice-President for the Digital Single Market, Andrus Ansip recently noted that current copyright law was ‘driving people to piracy’ and the best solutions had been when content was made available.

Meanwhile there’s a plethora of other copyright reforms that would help support local piracy efforts, such as the introduction of safe harbours for online platforms and fair use.

As the ADA’s Trish Hepworth said in evidence to the Senate Committee:

Safe harbours provide the mechanism through which rights holders can notify intermediaries of infringing content, obliging the intermediary to promptly take down that content or disable access to that content in order to obtain legal protections. This method of copyright enforcement is particularly important to small-scale and independent Australian creators. Unlike the copyright code or the proposed website blocking, you do not need to use complex technologies or hire expensive lawyers in order to utilise the safe harbour protections. 

It’s 2015. We have had two major enforcement intiatives in the last year. Surely it’s about time we addressed the fact that you can’t host a search engine in this country and concentrated on positive moves to support local creators.