Australian internet service providers will soon be required to block access to overseas websites found to be facilitating copyright infringement if a new bill before parliament passes.
Called the Copyright Amendment (Online Infringement) Bill 2015, Communications Minister Malcolm Turnbull introduced it into parliament last month. It is now being scrutinised by a parliamentary committee which is due to report back any recommendations to alter the bill by May 13.
The bill will allow movie and TV show rights holders to seek orders from Federal Court judges via an injunction that would require internet providers of their choosing to block access to the infringing websites, which the bill refers to as "online locations" based outside of Australia.
The bill is targeted at blocking access to torrent sites, such as The Pirate Bay and Kickass, as well as illicit video streaming websites.
Among a number of things a judge must take into account before deciding to block an overseas website is whether it has the "primary purpose" of facilitating copyright infringement.
Below, Mr Turnbull answers eight questions Fairfax Media put to him about the bill.
The bill has been drafted so that a court can decide whether or not to issue an injunction based on evidence of copyright infringement and an understanding that a site has been established with the primary purpose of causing copyright infringement. The government will not be commenting on particular sites, especially before the court makes a decision. It is fair to say that sites that have been created with the primary purpose of infringing copyright or facilitating the infringement of copyright are intended to be addressed by this bill. The bill lists a number of matters for the court to consider when deciding whether to grant an injunction; whether the court of another country has ordered that access to the site be disabled because of copyright infringement is one of those considerations.
2. Will consumers be able to contest injunctions at the first instance?
Anyone may apply to be party to a case in accordance with the normal rules and procedures of the court, but they generally have to demonstrate that they have some sort of standing in respect of it. In the first instance it is expected that rights holders, ISPs and the operator of the site in question (if that person applies to be joined as a party) would have the opportunity to take part in the case.
Editor's note: A submission by Queensland University of Technology's intellectual property law and innovation research group to the committee scrutinising the bill argues that consumers will have no standing. "Australian citizens, whose rights to access information are most directly impacted by this proposal, have no standing to contest applications," the group says.
3. Could VPN websites be blocked if they are found to facilitate piracy?
It is not the intention of the amendments to apply to VPNs and it is difficult to see how VPNs, which are extensively used for a wide range of legitimate purposes, could be said to have a primary purpose of copyright infringement. It would also be very difficult, if not impossible, to establish the need for flagrancy given that a VPN is no more than a conduit and has [no] oversight, control or influence over the type of activities a customer uses that conduit for.
Editor's note: Consumer advocacy groups CHOICE and the Australian Communications Consumer Action Network both say they are concerned the new laws could allow industry groups to block or hinder the use of VPNs. The Australian Digital Alliance has similar concerns.
4. How will sites be blocked and how do you ensure there won't be collateral damage? Won't this require some sort of internet filter?
The court will determine which, if any, sites should be the subject of an injunction. One of the factors the court needs to consider before granting an injunction is whether disabling access to the site is a proportionate response in the circumstances, for example, whether the site has a substantial non-infringing purpose. The ISPs will decide how to carry out the injunction in respect of those sites in accordance with the terms of the injunction order.
5. How will consumers know whether a site has been blocked when they try to visit it? There doesn't appear to be anything in the bill that says they will be required to put up a [notice] page.
The court will determine which, if any, sites should be the subject of an injunction and whether it is appropriate to make additional orders in granting the injunction. This could, for instance, include putting up a notice which explains why access has been blocked. The ISPs will decide how to carry out the injunction, along with any conditions imposed by the court, in respect of those sites.
The bill notes that the court may vary or rescind an injunction on the application of a person who is a party to the court proceedings or who is listed in the regulations. The ACCC and ACMA are non-exhaustive examples of persons who may be prescribed in the regulations.
Editor's note: Regulations of a bill can be changed without the approval of parliament, meaning that the government may wish to add other persons to the regulations that can request the revocation of a website block that is in place.
7. What does "primary purpose" mean?
The explanatory memorandum to the bill notes that the 'primary purpose test' sets an intentionally high threshold to determine whether a court may order access to an online location to be blocked. In addition to determining that the site has either infringed or facilitated infringement of copyright, the court must form the view that the site operates with the intention of copyright infringement in mind. The explanatory memorandum also explains that it is not the intention to block access to sites that do not operate for the primary purpose of infringing copyright but inadvertently link to infringing material. This requirement of "primary purpose" was inserted in s115(1) in order to make clear that the section did not apply to, say, a US site which was accessed by VPN from Australia and sold content to Australians in respect of which the site did not have an Australian license. The target of the section is avowedly copyright infringing sites like Pirate Bay.
8. Will ISPs be compensated the $130,000 a year by the government? If not, why not? (Government estimates it will costs ISPs $130,000 per year to run the blocking regime)
No. International experience has shown that injunctions are generally applied to larger ISPs who have existing infrastructure to enable site-blocking (e.g. to meet requirements to block child abuse material). It is worth noting that ISPs have been exempted from court costs relating to the injunction unless they choose to participate in it.
