Draft Discussion Paper Purports to Reveal Government’s Plan For Piracy Crackdown
Monday 28 July 2014 @ 12.41 p.m. | IP & Media
Last week, Australian news website Crikey published what appears to be a leaked copy of a draft government discussion paper on “Online Copyright Infringement”. As previously reported on TimeBase, Attorney-General George Brandis has been signalling since the beginning of the year that he intends to change copyright legislation.
In February he told internet service providers (ISPs) that if they did not come up with a voluntary code to crack down on piracy, he would introduce legislation to deal with the problem. In June he told the Senate that Australia was “the worst offender of any country in the world when it comes to piracy”. The draft discussion paper is the first indication of what mechanisms the government is considering.
The Proposals
Extended authorisation liability
The first proposal states:
“The Copyright Act would be amended to clarify the application of authorisation liability under sections 36 and 101 to ISPs…
The ‘power to prevent’ the infringing act would no longer be a separate element, but would be only one of a number of relevant factors in determining whether ‘reasonable steps’ were taken to prevent or avoid the infringement. The amendments would clarify that the absence of a direct power to prevent a particular infringement would not, of itself, preclude a person from taking reasonable steps to prevent or avoid an infringing act.”
This proposal seems aimed directly at overturning the High Court decision in Roadshow Films v iiNet Limited [2012] HCA 16, which found that ISPs weren’t liable for authorising copyright infringements of their subscribers.
Extended injunctive belief to block infringing overseas sites
The second proposal is:
“The Copyright Act would be amended to enable rights holders to apply to a court for an order against ISPs to block access to an internet site operated outside Australia, the dominant purpose of which is to infringe copyright.”
Extended safe harbour scheme
The last proposal is:
“The Copyright Act would be amended to extend the application of the safe harbour scheme to entities engaged in activities set out in sections 116AC to 116AF. This would be achieved by removing the reference to carriage service provider and replacing it with a definition of ‘service provider’…”
TimeBase has previously written about Google’s call for the expansion of safe harbour rules in Australia. Currently, provisions that limit the remedies for “carriage service providers” who authorise infringements apply to ISPs, but not to social media sites or search engines.
Reaction
Village Roadshow chief Graham Burke told the Sydney Morning Herald that he applauded the changes in the discussion paper, but didn’t feel as if they went far enough, saying that people who pirate should have their download speeds slowed. The paper does not deal with the so-called “three-strikes” policy that was purportedly being considered earlier this year.
Dr Matthew Rimmer, an associate professor at the ANU College of Law, told Computerworld that the discussion paper was “a kind of wish list” for rights holders, and was a “very radical proposal for copyright law reform”. He was particularly concerned about the website blocking proposal, saying the “dominant purpose” test posed difficulties as many sites had very mixed purposes.
The paper does acknowledge one issue consistently raised by many critics, saying:
“Rights holders can ensure that content can be accessed easily and at a reasonable price by their customers”.
The Sydney Morning Herald has also highlighted that the paper seems to go against Mr Turnbull’s original views on the iiNet case. They report that back in 2012, he told the ABC:
"I think the High Court came to the right decision and I really welcome it… It is very, very, very difficult if not impossible for someone that is just selling connectivity, just providing bandwidth to then be monitoring what people are doing."
The Government has not yet commented on the leaked paper, and it is not clear if these reforms will remain in their current form in the final discussion paper, and when it will be released.
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