Bills Digest No. 41,
2018–19
PDF version [630KB]
Owen Griffiths
Law and Bills Digest Section
9 November 2018
Contents
The Bills Digest at a glance
Purpose of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Other
provisions
Concluding
comments
Date introduced: 18 October
2018
House: House of
Representatives
Portfolio: Communications
and the Arts
Commencement: The day
after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
November 2018.
The Bills Digest at a glance
What the Bill does
The Bill will amend the Copyright
Act 1968 to:
- Expand
the threshold for injunctions to be sought against overseas online locations
with the ‘primary purpose or the primary effect’ of infringing, or
facilitating the infringement of, copyright.
- Insert
a rebuttable presumption that an online location is located outside Australia,
which will reduce the evidentiary burden on copyright owners applying for
injunctions.
- Enable
copyright owners to seek injunctions requiring online search engine providers
to take such steps as the Federal Court of Australia (Federal Court) considers
reasonable so as not to provide search results that refer users to blocked
online locations.
- Clarify
that the Federal Court may grant injunctions which allow:
- the
copyright owner and carriage service provider, by agreement, to apply the
injunction to block other domain names, URLs and IP addresses that start to
provide access to the online location after the injunction is made and
- the
copyright owner and online search engine provider, by agreement, to apply the
injunction to not provide search results that include domain names, URLs and IP
addresses that start to provide access to the online location after the
injunction is made and
- Enable
the Minister, by legislative instrument, to declare that particular online
search engine providers, or classes of online search engine providers, be
exempt from the scheme.
Purpose of
the Bill
The purpose of the Copyright
Amendment (Online Infringement) Bill 2018 (Bill) is to amend the Copyright Act 1968
to expand the online copyright infringement scheme. This scheme allows
copyright owners to apply to the Federal Court for injunctions to block access
by users in Australia to overseas online locations which facilitate the
infringement of copyright.
In particular, the proposed amendments will expand the
threshold test for injunctions to be granted and allow injunctions to be
applied to the search results of online search engine providers. The Bill will
also clarify that the Federal Court can make responsive orders which may be
applied to new online locations (without the need for a further injunction).[1]
Background
Copyright is an intellectual property right which allows the
creative works of writers, musicians, visual artists, film makers and others to
be commercialised.[2]
Copyright owners have exclusive rights in relation to protected works,
including the right to reproduce the work and the right to communicate the work
to the public.[3]
In particular, the meaning of communicate in the Copyright Act
includes to ‘make available online or electronically transmit’.[4]
In his second reading speech for the Bill, the Minister
for Families and Social Services Paul Fletcher noted that while the digital age
has created ‘opportunities for consumers to access this content in new and
different ways’, it has also created ‘major challenges for Australia's creative
industries’:
Online copyright infringement reduces the livelihood of
Australian creators and investors, and foreign based websites continue to
illegally distribute the content of Australian copyright owners. The operators
of these sites are often difficult to find and are located in countries that do
not have strong copyright laws.[5]
In response to these challenges, in 2015 the Copyright
Amendment (Online Infringement) Act 2015 (2015 Act) inserted
section 115A into the Copyright Act.[6]
This section allows the owner of a copyright to apply to the Federal Court for
an order requiring a carriage service provider (CSP) to block access to an
online location that has the ‘primary purpose’ of infringing copyright or
facilitating the infringement of copyright.[7]
Content owner organisations have successfully used section
115A to obtain injunctions blocking access to a range of online locations.[8]
An alternative approach to address online copyright infringement through an
industry code with Australian internet service providers (ISPs) and a ‘three
strikes’ scheme directed at piracy by consumers appears to have faltered over
concerns about who would be responsible for the costs of the scheme.[9]
In this context, a key question is to what degree can copyright
enforcement measures influence levels of online copyright infringement? The
Department of Communications and the Arts has commissioned research which has
found that ‘there has been a decrease in those who consume infringing content
from 42 per cent in 2015 to 38 per cent in 2017, and down to 33 per cent in
2018’.[10]
This trend accords with overseas research into online piracy which found a
decrease in the percentage of persons who acquired or accessed content
illegally in France, Poland, Spain, Sweden and the United Kingdom between 2014
and 2017 (while Germany experienced a slight increase).[11]
This study stated:
It might be tempting to argue that an increase in the use of
certain enforcement measures against obviously illegal platforms has
contributed to the decreasing number of pirates in Europe. However, a lack of
evidence concerning the effectiveness of most enforcement measures and the
strong link between piracy and the availability and affordability of content
suggests otherwise: at a country level, online piracy correlates remarkably
strongly with a lack of purchasing power. Higher per capita income
coincides with a lower number of pirates per legal users.[12]
In 2016, the Productivity Commission published a report on
Australia’s Intellectual Property Arrangements.[13]
This report included consideration of the 2015 Act amendments:
Introduction of the ‘website take down’ scheme was
controversial. At the time, concerns were raised with the lack of specificity
in the scheme, and in particular, the lack of a definition as to what
constituted the ‘primary purpose’ of a website, whether any infringement was ‘flagrant’
or not, and whether or not the website showed ‘disregard for copyright
generally’. Concern was also expressed that rights holders might inadvertently
(or inappropriately) target other websites providing socially useful functions,
or capture virtual private network services. Others argued taking down websites
would achieve little, because blocked websites would simply change their
address and be quickly discoverable again.[14]
It observed:
Copyright rights holders have been engaged in an almost 20 year-long
battle to eliminate online infringement internationally. However, pursuing
court-based enforcement against websites, ISPs and individuals has not been
successful, and possibly less successful in Australia than elsewhere. What has
appeared to limit infringement is timely and competitively-priced access to
content. Various survey studies consistently demonstrate that where
copyright-protected content is available to consumers, the vast majority prefer
paid, legal consumption...
In the Commission’s view, the case for further policy change
or Government action on copyright infringement is weak. Rights holders, their
publishers and other content providers are best placed to bring content to
Australian consumers in a timely and competitively priced way. This approach is
the most efficient and effective way to reduce online copyright infringement.[15]
The Senate Legal and Constitutional Affairs Legislation
Committee’s inquiry into the legislation for the 2015 Act recommended
that the Government conduct an effectiveness review to be completed two years
after its enactment.[16]
The Government agreed that a review should be conducted.[17]
In February 2018, the Department of Communications and the Arts (Department)
commenced a review
on the operation of the Copyright Amendment (Online Infringement) Act 2015
(Department review).[18]
The review received 22 submissions (discussed below).
Committee
consideration
Senate Standing Committee for the
Selection of Bills
The Senate Selection of Bills Committee’s Report No. 12
of 2018 contained a recommendation that the provisions of the Bill be
referred to the Senate Environment and Communications Legislation Committee.[19]
This referral was proposed by Senator Rachel Siewert of the Australian Greens.[20]
However, on the motion of the Minister for the Communications and the Arts,
Senator Mitch Fifield, this report was amended in the chamber to omit this
recommendation.[21]
Senate Standing Committee for the
Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills has not commented on the Bill. It is expected the next Scrutiny
Digest will be tabled on 14 November 2018.
Policy
position of non-government parties/independents
Australian Labor Party (Labor)
Labor members supported the passage of the Bill in the
House of Representatives. The Shadow Attorney-General, Mark Dreyfus, stated:
Labor will be supporting this bill, the Copyright Amendment
(Online Infringement) Bill 2018, because it makes a number of improvements to
the existing regime for protecting the rights of artists and others whose
livelihoods depend on them being paid for what they create, whether that's
music, movies, television programs, books or any other form of intellectual
property. Labor supports this bill because it will strengthen the current
regime under which a court can make orders blocking access to websites that
have the primary purpose, or the primary effect, of infringing copyright.[22]
However, the Shadow Minister for the Digital Economy, Ed
Husic, also noted there were broader issues in relation to addressing online
copyright infringement. These matters included making material more available
to consumers. He stated:
These rights holders think that, by constantly using legal
mechanisms through this place and elsewhere, piracy will disappear. The reality
is that piracy is a reflection of a market failure. I do not excuse, condone or
support piracy, but I do recognise that it is a reflection of market failure,
where producers are making an offering that is not in line with consumer
expectations and the access is not in line with consumer expectation.
What we are providing for with these types of bills, which
the rights holders all champion, support and claim credit for, is a form of
regulatory hallucinogen, where they think that, if they get this type of
regulatory reform through, piracy will disappear. No, it won't. When rights
holders get serious about the consumer offering and the way in which they're
helping consumers access content in a much more affordable way, that will have
a bigger impact ...[23]
Australian Greens
Representatives of the Australian Greens do not appear to have
commented on the provisions of the Bill. As noted above, Senator Rachel Siewert
unsuccessfully proposed that the Bill be referred to the Senate Environment and
Communication Legislation Committee. Her proposal stated ‘[c]areful scrutiny is
needed over legislation that blocks websites to ensure sufficient safeguards
and oversight’.[24]
When the Senate Legal and Constitutional Affairs
Legislation Committee conducted an inquiry into the Copyright
Amendment (Online Infringement) Bill 2015 (which introduced section 115A
into the Copyright Act) former Senator Scott Ludlam made a dissenting
report for the Australian Greens which recommended that the legislation not be
passed. He stated:
The Bill will allocate a significant new censorship power to
the Court that will be used by copyright owners to block access to online
content. However, there is a substantial weight of evidence showing that it
will be relatively easy to evade the Bill's provisions, that it does not
contain appropriate safeguards, and that it may result in legitimate online
sources being blocked.[25]
Position of
major interest groups
The positions of some major interest groups concerning amendments
to the Copyright Act to address online copyright infringement were
outlined in submissions to the Department review.
Several content industry and ISP industry submissions
indicated they were broadly satisfied with the arrangements created by the 2015
Act. However, the amendments of the Bill appear to be responsive to matters
raised by a number of content industry submissions. For example, the Joint
Submission from the Australian Film & TV Bodies recommended extending
section 115A to other ‘intermediary service providers’ which can also
facilitate access to content. These include content delivery network services,
reverse-proxy services, file-hosting providers, domain name registries and
registrars and service engine providers.[26]
It stated:
Extending s115A to these other types of service providers
would materially assist in achieving the objective of reducing online copyright
infringements in Australia. It would result in a technologically neutral
provision that does not discriminate between the technologies used by different
types of service providers to allow Internet users to access infringing
content, putting these service providers on a level playing field and
future-proofing s115A.[27]
The Foxtel submission was also supportive of expanding the
scope of the section 115A arrangements to ‘service providers’, particularly
search engine providers.[28]
It noted that search is ‘still the most used source via which people access
piracy sites, both in overseas jurisdictions and in Australia’ and that ‘search
engines already remove URLs from site indexes to comply with local laws and
product community standards’.[29]
It considered that ‘capturing search engines under the site blocking powers is
a powerful regulatory advancement through [sic] which would place Australia at
the forefront of piracy action’.[30]
Foxtel’s recommendations also included lowering the
‘primary purpose’ threshold in section 115A. It stated:
[T]here are a substantial number of piracy sites which are
currently accessed by a large number of Australia for which it less clear that
the site in question would meet [the primary purpose] threshold requirement;
for example, hosting and cyberlocker type sites that may appear on their face
to be legitimate sites but in fact are predominantly used to remotely store
infringing files that are then accessed by pirate services. Foxtel submits that
amending s115A(1)(c) to refer to ‘a substantial purpose or effect’ rather than
‘the primary purpose’ would assist in ensuring such sites are undoubtably [sic]
able to be targeted under s115A... [31]
Only a few stakeholders representing content user rights appear
to have made submissions to the Department review. However, these submissions
did raise concerns regarding the potential expansion of the scheme. For
example, the Australian Digital Alliance noted that it would be concerned with
any amendments which sought to extend ‘the application of the scheme beyond
ISPs to other intermediaries, including libraries, universities, schools, cloud
services and online platforms’.[32]
The Pirate Party of Australia made a substantial
submission which was critical of a number of aspects of the scheme introduced
by the 2015 Act. For example, it considered ‘[t]here is no evidence
after almost 3 years showing any causal effect between injunctions issued under
the site-blocking scheme and any significant or meaningful change in levels of
online copyright infringement in Australia’.[33]
The submission made a number of recommendations including that the ‘[t]he
Federal Court’s role providing judicial review of injunctions brought under the
scheme should not be diminished or degraded’ and that injunctions should be for
a maximum duration of six months ‘unless rights-holders apply for a renewal of
the injunction’.[34]
Overall, it concluded the 2015 Act should be repealed.[35]
Further consultation with CSPs and
online search engine providers
The Department’s Regulation Impact Statement for
the Bill (attached to the Explanatory Memorandum) outlines that a further ‘limited
consultation’ occurred in September 2018.[36]
Copyright owners were supportive of the approach which was termed ‘Option 2:
extend to online search engine providers and extend the “primary purpose” test’.
However,
CSPs and online search engine providers did not support these
proposals, arguing that there may be unintended consequences. Online search
engine providers also argued that the legislative requirements are unnecessary
as they take voluntary measures in cooperation with copyright owners.[37]
Some adjustments were made to the ‘Option 2’ approach to
address these concerns (discussed below). The Regulation Impact Statement
acknowledges that two major online search engine providers dominate the market—Google
and Bing.[38]
It states:
[I]t is clear that both these online search engine providers
have the existing capability to modify their search engine results to implement
any orders under s 115A, although there may be a cost of maintaining systems to
ensure they are up-to-date and effective.[39]
It is not clear whether these online search engine providers
(who are likely to be the subject of injunctions) have had the opportunity to
provide feedback on the specific amendments of the Bill. It is also unclear
whether Google or Bing made submissions to the Department review of the 2015
Act.[40]
Previously Google and other major internet companies have opposed overseas legislation
which proposed to filter or block access to websites through their services in
order to deter online intellectual property infringement.[41]
Financial
implications
The Explanatory Memorandum states that the Bill will not
have a significant impact on Commonwealth expenditure or revenue.[42]
The Department’s Regulation Impact Statement suggests that the approach
adopted in the Bill could result in an increase in regulatory costs for online
search engine providers in the first year ($0.5 million) but that these costs
would fall to zero in following years.[43]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[44]
Parliamentary Joint Committee on
Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights has not commented on the Bill.
Key issues
and provisions
As noted above, section 115A was inserted into the Copyright
Act in 2015.[45]
Currently, section 115A of the Copyright Act allows a copyright owner to
apply to the Federal Court for an injunction where:
- a
carriage service provider (CSP) provides access to an online location outside
Australia
- the
online location infringes, or facilitates an infringement of, the copyright
- the
primary purpose of the online location is to infringe, or to facilitate the
infringement of, copyright (whether or not in Australia) and
- the
injunction is to require the carriage service provider to take reasonable steps
to disable access to the online location.
Subsection 115A(5) includes a range of matters which the
Federal Court may take into account in determining whether to grant an
injunction. These include ‘the flagrancy of the infringement’, ‘whether
disabling access to the online location is a proportionate response in the
circumstances’ and ‘whether it is in the public interest to disable access to
the online location’.
The Bill will repeal and replace a number of the
subsections in section 115A and give it a new heading—‘Injunctions relating to
online locations outside Australia’. In particular, item 2 will repeal
and replace subsections 115A(1) and 115A(2) and substitute four proposed
subsections.
Injunctions on carriage service
providers
Proposed subsection 115A(1) will allow a copyright
owner to apply to the Federal Court to grant an injunction to require a CSP to
take reasonable steps to disable access to an online location outside of
Australia which:
- infringes,
or facilitates an infringement, of the copyright and
- has
the primary purpose or the primary effect of infringing, or facilitating
an infringement, of copyright (whether or not in Australia).
The inclusion of ‘or the primary effect’ will expand the
scope of the online locations which potentially may be subject to an
injunction. The Explanatory Memorandum confirms that this will be the effect of
the amendment:
Some overseas online locations that have the primary effect
of facilitating large-scale copyright infringement may not be captured under
the current scheme as it could be difficult to establish that this is the
‘primary purpose’ of the online location. For example, this may include but is
not limited to, some online file-hosting services, such as certain
cyberlockers, which are widely used as tools for sharing infringing music and
movie files...
This new threshold test will ensure that the intent of the
online location operator, or of the location’s users, are not conclusive
factors in granting an injunction. This new threshold is sufficiently high to
exclude online locations that are primarily operated for a legitimate purpose
but may contain a small proportion of infringing content.[46]
The Department’s Regulation Impact Statement highlighted
the role of ‘cyberlockers’ in current online copyright infringement and
indicated there was ‘a high likelihood that they are used by Australians for
infringing purposes’:
Cyberlockers are third-party file-sharing services, sometimes
also known as “file hosting” services. Access is provided through
password-protected hard drive space online. Users of these sites can share the
cyberlocker password information with others, who can privately download the
contents that the original user maintains on the site. Cyberlockers are able to
house large movie and music files, and unlike BitTorrent file-sharing which is
traceable, cyberlockers are very hard to monitor, as they employ one-to-one
connectivity which is difficult to detect through surveillance tools. Because
of this, cyberlockers are often used to trade infringing movie and music files.[47]
The potential issues with expanding the threshold to
online locations with ‘primary effect’ of infringing, or facilitating,
copyright infringement are considered in the Department’s Regulation Impact
Statement:
During the consultation on the Exposure Draft Bill, concerns
were raised that some sites (e.g. Pinterest), might have the ‘primary effect’
of facilitating the infringement of copyright, if a particular copyright owner
(e.g. a photographer or studio) decided to make an application under s115A.
Similar concerns were raised that the same risk could apply to non-infringing
cyberlockers sites used, for example, by legitimate small businesses that need
to share large-size files such as wedding videographers or distance education
providers.
However, copyright owners would be more likely to seek
cooperation from the operators of popular websites to address online
infringement issues (e.g. removing pay-per-view content appearing on Facebook
Live) rather than seeking a court injunction. If an application was made, the
operator of a popular website would be more likely to appear in the Court and
oppose the making of an order, and provide detailed arguments as to why it
should not be made.[48]
This amendment is a significant change to section 115A.
When section 115A was introduced it was made clear that the ‘primary purpose’ requirement
was ‘an intentionally high threshold for the copyright owner to meet as a
safeguard against any potential abuse’.[49]
The expansion of the threshold to include online locations with ‘the primary
purpose or the primary effect of infringing, or facilitating an infringement,
of copyright’ may impact the effectiveness of this safeguard against potential abuse.
Injunctions on online search engine
providers
Proposed subsection 115A(2) provides that a request
for an injunction may also include a request to require an online search engine
provider to take such steps as the Court considers reasonable so as not to
provide a search result that refers users to the online location. This is a key
change as the injunction power in the 2015 Act was not intended to
target ‘[s]earch engines or websites based primarily on user-generated
content’.[50]
The Explanatory Memorandum to the Bill clarifies:
[I]njunctions directed at online search engine providers can
be made only where an injunction is granted in relation to a carriage service
provider, and only apply to search results that would link to an online
location to which the injunction directed at the carriage service provider
applies...
Consistent with the general operation of the Act, this
provision is limited in its operation to Australia. The aim of the scheme in
section 115A is to reduce the visibility and availability of infringing
material to users located in Australia.[51]
Flexible injunctions
Proposed subsections 115A(2A) and (2B) will provide
considerable flexibility to the Federal Court regarding the terms and
conditions of the injunctions that may be granted and how they can be applied. The
Court can grant injunctions in the terms, and subject to the conditions, it
considers ‘appropriate’. This flexibility is emphasised by the note under proposed
subsection 115A(2A) which clarifies that the terms and conditions for an
injunction which are applied to a CSP may be different from those that are applied
to an online search engine provider.
In particular, an injunction can require a CSP or online
search engine provider to take reasonable steps to block or not provide search
results including:
- domain
names, URLs and IP addresses that provide access to an online location and
- domain
names, URLs and IP addresses that the copyright owner and CSP or search engine
provider agree in writing ‘have started to provide access to the online
location after the injunction is made’.[52]
This amendment is intended address situations where the
operators or owners of online locations circumvent blocking orders by changing
domain names, IP addresses or URLs.[53]
However, while this change may reduce the burden on copyright owners when infringing
material is moved to another online location, it also means the effect of the
injunction could be applied to new parties or new circumstances without further
judicial oversight.
The amendments are not prescriptive concerning how the agreements
in writing between the copyright owners and CSPs or online search engine
providers will be reached after an injunction is made. The Explanatory
Memorandum states that this process ‘will ultimately be a matter for the
parties, within the terms and conditions of the injunction determined by the
Court’:
[I]t is expected that, after the injunction is granted, the
copyright owner would be able to identify new domain names, URLs and IP
addresses that start to provide access to the online location subject to the
injunction after the injunction is granted. The copyright owner and carriage
service provider/online search engine provider would then agree, in writing,
that the new domain names, URLs and IP addresses are providing access to the
online location, and to block them or not provide search results for them, in
accordance with the injunction. It is not intended that the injunction would
permit a copyright owner to unilaterally determine new domain names, URLs and
IP addresses, without written agreement between themselves and carriage service
provider or online search engine provider.[54]
This is an area where it appears adjustments were made to
address concerns raised by CSPs and online search engine providers. The Regulation
Impact Statement states that ‘wording was expressly included in a
subsection to make it clear that CSPs and online search engine providers cannot
be coerced or forced into agreeing with copyright owners about the blocking of
these new pathways’.[55]
Matters to take into account in
granting injunctions
Items 6 and 7 amend subsection 115A(5) which
outlines the matters the Federal Court may take into account when determining
whether to grant an injunction.[56]
Item 6 inserts proposed paragraph 115A(5)(ea)
which will include consideration of ‘whether not providing search results that
refer users to the online location is a proportionate response in the
circumstances’. The Explanatory Memorandum gives the example of the Court
considering the ‘percentage of infringing content at the online location
compared to the legitimate content, or the frequency by which the infringing
material is accessed by users in Australia’.[57]
This will only apply to injunctions sought against online search engine
providers.
Item 7 inserts proposed paragraph 115A(5)(ga)
which will add a broad public interest consideration to the matters that may be
taken into account by the Federal Court in determining whether to extend an
injunction to the results of an online search engine provider.
Presumption that online locations
are outside Australia
Item 8 inserts proposed subsection 115A(5A)
which will insert an evidentiary presumption that, for the purposes of the
proceedings, the online location is outside of Australia. This is consistent
with the broader purpose of the Bill in reducing burdens on copyright owners in
applying for injunctions. The Explanatory Memorandum notes it is ‘particularly
difficult’ for copyright owners to prove that an infringing online location is
outside of Australia.[58]
Ministerial declaration
Item 9 inserts proposed subsections 115A(8A) and
(8B). These amendments will allow the Minister, by legislative instrument,
to declare that a particular online search engine provider, or an online search
engine provider that is a member of particular class, must not be specified in
an application for an injunction (or an application to vary an injunction). The
Explanatory Memorandum states:
The declaratory power in subsection 115A(8B) will provide a
safety net, in addition to the built-in safeguards in subsection 115A(5) of the
Act (including, for example, the proportionality principle and public interest
considerations), to ensure that applications for injunctions do not unfairly
target smaller operators that do not have the same reach or entities that
provide only internal (intranet) or limited search functions.
As any declarations made under subsection 115A(8B) are
legislative instruments, they will be subject to parliamentary scrutiny and
disallowance.[59]
Other provisions
Items 3, 4 and 5 do not appear
controversial. Item 3 allows an online search engine provider to become
a party to an injunction action under proposed section 115A if an
injunction is sought to apply to them. Item 4 requires a copyright owner
applying for an injunction to notify the online search engine provider. Item
5 makes a consequential amendment.
Item 10 amends subsection 115A(9) to provide that
CSPs and online search engine providers cannot be held liable for any costs in
relation to proceedings commenced by a copyright owner under section 115A if
they do not participate in the proceedings. Previously, this subsection only
covered CSPs.
Concluding
comments
The amendments of the Bill are responsive to concerns which
were raised by content industry submissions to the Department review of the 2015
Act. However, as noted above, the Productivity Commission’s report on
Australia’s intellectual property arrangements has described the case for
further policy change or Government action on copyright infringement as ‘weak’.[60]
It found that ‘[t]imely and competitively-priced access to copyright-protected
works is the most efficient and effective way to reduce online copyright
infringement’.[61]
The existing injunctions regime in the Copyright Act
does not attempt to directly regulate the activity of overseas online locations
which may contain copyright infringing material. Instead, it regulates access
to these online locations in Australia through Australian CSPs. The proposed expansion
of the injunctions mechanism to impact the search results of online search
engine providers (whose operations are primarily located overseas) appears to
be a significant change to this regulatory stance.
[1]. Explanatory
Memorandum, Copyright Amendment (Online Infringement) Bill 2018, p. 10.
[2]. For
further information about copyright generally see the Department of
Communications and the Arts website.
[3]. Section
31, Copyright Act.
[4]. Section
10, Copyright Act.
[5]. P
Fletcher, ‘Second
reading speech: Copyright Amendment (Online Infringement) Bill 2018’, House
of Representatives, Debates, (proof), 18 October 2018, p. 3.
[6]. See:
M Neilsen, Copyright
Amendment (Online Infringement) Bill 2015, Bills digest, 107, 2014–15,
Parliamentary Library, Canberra, 2015.
[7]. The
Copyright Act provides that carriage service provider has
the same meaning as in the Telecommunications
Act 1997. This legislation differentiates between carriers and carriage
service providers. Carriers are defined as those persons who own a
telecommunications network unit that is used to supply carriage services to the
public. A carriage service provider (CSP) uses, but does not own, a
telecommunications network unit to provide carriage services to the public. A
CSP can include organisations that resell time on a carrier network for phone
calls, provide access to the internet (internet service providers or ISPs) or
provide telephone services over the internet (VoIP service providers). CSPs do
not require a licence to supply a carriage service to the public. See,
Australian Communications and Media Authority (ACMA), Know
your obligations: carriers and carriage service providers, including internet
and VoIP service providers, ACMA, September 2015, p. 2.
[8]. For
example, Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016]
FCA 1503 ; Universal Music Australia Pty Limited v TPG Internet Pty Ltd
[2017]
FCA 435; Roadshow Films Pty Ltd v Telstra Corporation Ltd [2017]
FCA 965; Foxtel Management Pty Limited v TPG Internet Pty Ltd [2017]
FCA 1041; Foxtel Management Pty Ltd v TPG Internet Pty Ltd [2018]
FCA 933; Roadshow Films Pty Limited v Telstra Corporation Ltd [2018]
FCA 582; Television Broadcasts Limited v Telstra Corporation Ltd [2018] FCA 1434.
See, Department of Communications and the Arts (DoCA), Regulation
Impact Statement: Copyright Amendment (Online Infringement) Amendment Bill 2018,
(attached to the Explanatory Memorandum), October 2018, p. 5.
[9]. A
Coyne, ‘ISPs
blindsided by “shelved” Australian piracy code’, iTNews, 18 February
2016; H Francis, ‘Foxtel
and rights holders drop “three strikes” piracy scheme’, The Sydney
Morning Herald, (online edition), 25 May 2016.
[10]. Department,
Regulation Impact Statement, op. cit., p. 6.
[11]. J
Poort et al., Global
online piracy study, Institute of Information Law, University of
Amsterdam, July 2018, p. 13.
[12]. Ibid.,
p. 8 (emphasis in original).
[13]. Productivity
Commission (PC), Intellectual
property arrangements, Inquiry report, 78, PC, Canberra, 23 September
2016.
[14]. Ibid.,
p. 568.
[15]. Ibid.,
p. 569.
[16]. Senate
Legal and Constitutional Affairs Legislation Committee, Copyright
Amendment (Online Infringement) Bill 2015 [Provisions], 11 June 2015,
p. 32.
[17]. M
Turnbull, ‘Second
reading speech: Copyright Amendment (Online Infringement) Bill 2015’, House
of Representatives, Debates, 16 June 2015, p. 6416.
[18]. Department
of Communications and the Arts (DoCA), Review
of the Copyright Online Infringement Amendment, DoCA,
13 February 2018, p. 3.
[19]. Senate
Standing Committee for the Selection of Bills, Report,
12, 2018, The Senate, 18 October 2018.
[20]. Ibid.,
Appendix 1.
[21]. Australia,
Senate, Journals,
125, 2016–18, 18 October 2018, p. 3998.
[22]. M
Dreyfus, ‘Second
reading speech: Copyright Amendment (Online Infringement) Bill 2018’, House
of Representatives, Debates, (proof), 24 October 2018, p. 20.
[23]. E
Husic, ‘Second
reading speech: Copyright Amendment (Online Infringement) Bill 2018’, House
of Representatives, Debates, (proof), 24 October 2018, p. 25.
[24]. Senate
Standing Committee for the Selection of Bills, Report,
op. cit., Appendix 1.
[25]. Senate
Legal and Constitutional Affairs Legislation Committee, Copyright
Amendment (Online Infringement) Bill 2015 [Provisions], 11 June 2015,
pp. 37–38.
[26]. Australian
Film & TV Bodies, Submission
to Department of Communications and the Arts, Review of the Copyright Online
Infringement Amendment, 23 March 2018, pp. 18–19.
[27]. Ibid.,
p. 20.
[28]. Foxtel,
Submission
to Department of Communications and the Arts, Review of the Copyright Online
Infringement Amendment, 21 March 2018, p. 5.
[29]. Ibid.,
pp. 5–6.
[30]. Ibid.,
p. 6.
[31]. Ibid.,
p. 8.
[32]. Australian
Digital Alliance, Submission
to Department of Communications and the Arts, Review of the Copyright Online
Infringement Amendment, n.d., p. 1.
[33]. Pirate
Party of Australia, Submission
to Department of Communications and the Arts, Review of the Copyright Online
Infringement Amendment, 21 March 2018, p. 15.
[34]. Ibid.,
pp. 16–17.
[35]. Ibid.,
p. 18.
[36]. Department,
Regulation Impact Statement, op. cit., p. 18.
[37]. Ibid.
[38]. Ibid.,
p. 12.
[39]. Ibid.,
p. 13.
[40]. The
Department’s Regulation Impact Statement states that 22 submissions were
received by the review including from online search engine providers (p. 6).
However, only 20 submissions have been made available on the Department’s
review website.
[41]. For
example, D White, ‘News
swings at web pirates’, The Australian Financial Review, 21 January
2012, p. 2; D Drummond, ‘Don't
censor the web’, Google official blog, 17 January 2012.
[42]. Explanatory
Memorandum, Copyright Amendment (Online Infringement) Bill 2018, p. 2.
[43]. Department,
Regulation Impact Statement, op. cit., pp. 14–15.
[44]. The
Statement of Compatibility with Human Rights can be found at page 3 of the
Explanatory Memorandum to the Bill.
[45]. See,
M Neilsen, Copyright
Amendment (Online Infringement) Bill 2015, Bills digest, op. cit.
[46]. Explanatory
Memorandum, Copyright Amendment (Online Infringement) Bill 2018, p. 10.
[47]. Department,
Regulation Impact Statement, op. cit. p. 8.
[48]. Ibid.,
pp. 14–15.
[49]. Revised
Explanatory Memorandum, Copyright Amendment (Online Infringement) Bill
2015, p. 9, (emphasis added).
[50]. Ibid.,
p. 11.
[51]. Explanatory
Memorandum, Copyright Amendment (Online Infringement) Bill 2018, p. 11.
[52]. Proposed
subsection 115A(2B).
[53]. Department,
Regulation Impact Statement, op. cit., p. 9.
[54]. Explanatory
Memorandum, Copyright Amendment (Online Infringement) Bill 2018, p. 13.
[55]. Department,
Regulation Impact Statement, op. cit., p. 18.
[56]. A
note under proposed section 115A(2A) clarifies ‘For the matters that the
Court may take into account when determining whether to grant the injunction,
see subsection (5)’.
[57]. Explanatory
Memorandum, Copyright Amendment (Online Infringement) Bill 2018, p. 14.
[58]. Ibid.
[59]. Ibid.,
p. 15.
[60]. PC,
Intellectual
property arrangements, op. cit., p. 569.
[61]. Ibid.,
p. 570.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth
Coat of Arms, and to the extent that copyright subsists in a third party,
this publication, its logo and front page design are licensed under a Creative Commons
Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and
communicate this work in its current form for all non-commercial purposes, as
long as you attribute the work to the author and abide by the other licence
terms. The work cannot be adapted or modified in any way. Content from this
publication should be attributed in the following way: Author(s), Title of
publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists
in third party quotes it remains with the original owner and permission may
be required to reuse the material.
Inquiries regarding the licence and
any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament.
They are produced under time and resource constraints and aim to be available
in time for debate in the Chambers. The views expressed in Bills Digests do
not reflect an official position of the Australian Parliamentary Library, nor
do they constitute professional legal opinion. Bills Digests reflect the
relevant legislation as introduced and do not canvass subsequent amendments
or developments. Other sources should be consulted to determine the official
status of the Bill.
Any concerns or complaints should be
directed to the Parliamentary Librarian. Parliamentary Library staff are
available to discuss the contents of publications with Senators and Members
and their staff. To access this service, clients may contact the author or
the Library’s Central Enquiry Point for referral.