By Suzy Wood

All eyes are on the federal government this week as we await a signal about the likely fate of controversial website-blocking legislation.  

With the Legal and Constitutional Affairs Legislation Committee report postponed till 29 May, there's hopefully time for some solid amendments to the Bill. So what are the issues with the current drafting? 

The Copyright Amendment (Online Infringement) Bill joins an ever-growing suite of legislative and industry measures to try to stop Australians from obtaining copyright infringing content online.  The bill proposes to create a regime of website blocking. If passed, it will let copyright owners seek a court-ordered injunction to block overseas sites whose "primary purpose" is to infringe, or "facilitate" the infringement of, copyright.

The ADA does not fundamentally object to blocking access to flagrantly infringing sites. But the legislation that establishes the scheme should be carefully and precisely worded. Website blocking is a blunt tool, and the consequences of an accidental or wrongful blocking can be severe.  Websites can provide opportunities for learning, communication, entertainment and creative expression. If the wrong site is blocked, our access to these important opportunities will suffer for no good reason.

The ADA believes that the bill is drafted in terms that are much broader than necessary. Because the injunctions can target sites that merely "facilitate" copyright infringement, it’s possible that many legal sites could be swept into the line of fire.  The wording should be tightened up to make it clear that virtual private networks, cloud storage, URL shorteners and compression tools are not at risk. 

It’s also crucial that the court considers freedom of expression and freedom of access to information when weighing up whether to grant an injunction. These protections should be enshrined in the actual wording of the legislation.

Worryingly, there is also no way for people who are affected by the orders to seek a review of the court’s decision.

The ADA’s submission suggests an alternative wording that would help to iron out these problems.

Even if these issues are fixed, website blocking legislation should form only one part of a wider program to address copyright infringement. Merely blocking websites that contain infringing content, without doing more to help support content creation and distribution in Australia, is a wholly inadequate response.

The ADA has previously said that the main focus should be on pushing forward key reforms to make copyright law fairer.  The extension of safe harbours to all online intermediaries is long overdue. As well as providing the protection necessary to encourage content hosting in Australia, safe harbours would give rights holders a simple way to take down infringing material, without the need to resort to the blunt tool of website blocking.