On 13 November 2018, the Senate referred the provisions of the Copyright
Amendment (Online Infringement) Bill 2018 (the bill) to the Senate Environment
and Communications Legislation Committee (the committee) for inquiry and report
by 26 November 2018.
Conduct of the inquiry
In accordance with its usual practice, the committee advertised the
inquiry on its website and wrote to relevant individuals and organisations
inviting submissions. The date for receipt of submissions was 20 November 2018.
The committee did not hold a public hearing for the inquiry.
The committee received 26 submissions, which are listed at Appendix 1.
The public submissions are available on the committee's website at https://www.aph.
The committee thanks all of the individuals and organisations that
contributed to the inquiry.
Scope and structure of the report
This report comprises two chapters. The remaining sections of this
chapter discuss the purpose of the bill, background to the bill and reports by
other committees. Chapter 2 outlines the principle issues raised in evidence
and presents the committee's views and recommendations.
Purpose of the bill
The bill seeks to expand the scope of the injunctive regime in section
115A of the Copyright Act 1968 (Copyright Act). That section is aimed at
blocking access by users in Australia to overseas online locations that
facilitate large-scale infringement of copyright.
Section 115A currently permits copyright owners to apply to the Federal
Court for an injunction requiring a carriage service provider to disable access
to an online location outside Australia that has the primary purpose of
infringing, or facilitating the infringement, of copyright.
The amendments in the bill seek to:
provide that a copyright owner may apply to the Federal Court for
an injunction in respect of an online location that has the primary purpose, or
the primary effect, of infringing, or facilitating an infringement, of
copyright (whether or not in Australia);
include a rebuttable presumption that an online location is
outside Australia, to reduce the evidentiary burden on copyright owners;
enable copyright owners to seek injunctions requiring online
search engine providers to take such steps as the Federal Court considers
reasonable not to provide search results that refer users to blocked online
clarify that the Federal Court may grant injunctions in terms
the copyright owner and carriage service provider, by agreement,
to apply an injunction to block other domain names, URLs and IP addresses that
start to provide access to the online location after the injunction is made;
the copyright owner and online search engine provider, by
agreement, to apply the injunction to not provide search engine results that
include domain names, URLs and IP addresses that 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.
In his Second Reading Speech to the House of Representatives on the bill,
the Minister for Families and Social Services, the Hon Paul Fletcher, stated
In February this year, the Government reviewed the existing
scheme to determine whether it was operating effectively. In general, this
assessment found that the scheme is working well, and that blocking
arrangements have been implemented by carriage service providers with minimal
disruption. However, there are some clear pressure points.
First, search engines enable users to discover the existence
of blocked websites and provide alternative pathways to get to those sites.
Second, the types of online piracy have also become broader, with increased use
of sophisticated online locations, such as 'cyberlockers', that allow mass
file-sharing. Third, new pathways to the blocked sites appear after the initial
blocking, and these new pathways can't be blocked because they are not part of
the original order. Finally, it can be difficult and costly to determine
whether an online location is, in fact, located overseas.
The minister stated that the measures in the bill directly address these
concerns, adding that none of the measures will impede or affect the capacity
for carriage service providers or search engine providers to voluntarily block
or remove links to copyright infringing locations.
The minister concluded that:
...the Government is seeking quick passage of this Bill so that
Australia's creative industries can take action to protect their rights. These
industries have put in place voluntary measures to make content more accessible
and cheaper, and run education campaigns so that Australians are aware of the
impact of piracy. It is now appropriate for the Parliament to support these
efforts by reforming our copyright website blocking scheme to ensure it is
fit-for-purpose in a contemporary digital media environment.
Background to the bill
The Copyright Act creates exclusive intellectual property rights for
owners, including rights to copy, adapt, publish, communicate to the public and
publicly perform protected material. Works protected under the Copyright Act
include literary, artistic and musical works, as well as film and sound
recordings. The Copyright Act also contains a number of remedies through which
copyright owners can enforce their rights.
These have proven effective in addressing copyright infringement in Australia.
However, while copyright owners are easily able to take action against
domestic sites, a number of foreign-based websites have emerged to provide
access to copyrighted material. This has created difficulties for Australian
copyright holders seeking to enforce their rights.
In his second reading speech for the bill, the Minister for Families and Social
Services, the Hon Paul Fletcher MP, noted in this regard that:
...the internet continues to create 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 or impossible to find, and are
located in countries that do not have strong copyright laws.
Difficulties associated with enforcing copyright against foreign-based
websites were identified some years ago and, in response, the Government
enacted the Copyright Amendment (Online Infringement) Act 2015 (2015
Act). The 2015 Act inserted section 115A into the Copyright Act.
That section permits a copyright owner to apply to the Federal Court of
Australia (Federal Court) for an order requiring a carriage service provider to
block access to an online location outside of Australia that has the 'primary
purpose' of infringing, or facilitating the infringement of, copyright.
The Senate Legal and Constitutional Affairs Legislation Committee
inquiry into the Copyright Amendment (Online Infringement) Bill 2015
recommended that the Government conduct an effectiveness review, to be
completed two years after its enactment.
The Government agreed that a review should be conducted.
The Department of Communications and the Arts (the department) conducted
a review of section 115A of the Copyright Act in February of 2018. The
department received 22 submissions, mostly from representatives of copyright
owners, internet service providers, technology sector firms and digital rights
Most stakeholder submissions agreed that section 115A has been a positive
government initiative which is largely working as intended.
However, submitters noted that section 115A could be improved in a number
of ways. For example, the joint submission from the Australian Film & TV
Bodies recommended extending section 115A to other 'intermediary service
providers' that facilitate access to content.
A number of submitters also raised concerns that section 115A is currently limited
to online locations outside Australia, and about the process to obtain extended
orders to block new domain names, URLs and IP addresses.
The department concluded that while section 115A was achieving most of
its aims, there was scope to consider improvements to address gaps in the
scheme that enabled Australians to access overseas locations that infringe or
facilitate the infringement of copyright.
Reports of other committees
Senate Standing Committee for the
Scrutiny of Bills
When examining a bill or draft bill, the committee takes into account
any relevant comments published by the Senate Standing Committee for the
Scrutiny of Bills (Scrutiny of Bills). The Scrutiny of Bills Committee assesses
legislative proposals against a set of standards that focus on the effect of
proposed legislation on individual rights, liberties and obligations, and on
In its Scrutiny Digest No. 13 of 2018, the Scrutiny of Bills
Committee expressed concern that the bill would permit the minister to declare,
by legislative instrument, that a particular online search engine provider or
class of providers must not be specified in an application for an injunction,
or an application to vary an injunction. The Scrutiny of Bills Committee
emphasised that significant matters, such as the specification of providers
that are to be exempted from an injunctive scheme, should be included in
primary legislation unless a sound justification for the use of delegated
legislation is provided. The Scrutiny of Bills Committee also
emphasised that the proposed power is very broad, in that it would permit the
minister to exclude any online location from the operation of the
The Scrutiny of Bills Committee requested the minister's advice as to
why it is necessary to enable delegated legislation to exempt online search
engine providers from the copyright injunctive scheme, and the appropriateness
of amending the bill to as to specifically exclude certain classes of smaller
Parliamentary Joint Committee on
At the time of this report, the Parliamentary Joint Committee on Human
Rights (Human Rights Committee) had not commented on the bill. It is expected
that the Human Rights Committee's Report 12 of 2018 will table on 27
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