Monday, 22 June 2015
Copyright Amendment (Online Infringement) Bill 2015; Second Reading
Labor will support the Copyright Amendment (Online Infringement) Bill 2015 after closely considering it in the Senate Legal and Constitutional Affairs Committee. The bill makes a modest contribution to the suite of measures required to deal with Australia's online copyright piracy problem.
The bill implements a site-blocking process under which rights holders can seek a Federal Court injunction requiring ISPs to block overseas websites that have the primary purpose of infringing copyright or facilitating the infringement of copyright. As this test indicates, the bill is directed—as my colleague the shadow Attorney-General said in the other place—at the worst of the worst. It is intended to give rights holders a remedy against a category of websites which deliberately and flagrantly flout copyright laws and operate as havens for pirate activity. A blocking mechanism is necessary because these websites are hosted overseas; were they hosted within Australia, they would be able to be dealt with by the ordinary remedies of the copyright law.
In deciding whether to make an order under this bill, the court will take account of a range of factors including: the flagrancy of the infringement, or the facilitation of infringement, by a site; whether the site shows a disregard for copyright generally; and whether the website contains a directory or index of ways to infringe copyright. On the other hand, the court will consider whether other remedies under the copyright law are available. Importantly, the court will consider the impact of a site-blocking order on any other persons or class of persons and whether making such an order would be a proportionate response in the circumstances. As I said, Labor considered this bill closely in the Legal and Constitutional Affairs Committee. While Labor supports measures which will discourage or disrupt piracy, the power to block websites is clearly to be exercised with great caution, and we wanted to ensure that the power this bill creates is appropriately confined.
The committee endorsed the bill in its report tabled 11 June, but—and I stress 'but'—it did make several recommendations which the government has accepted. The committee noted the strong concern from some rights holders that the primary purpose test was too narrow but recommended that it be retained. The committee did recommend, however, that the government clarify that the test was not to be construed in a perversely narrow way, which the government has done in the explanatory memorandum to the bill. It is obviously not parliament's intention that a piracy website be able to argue, for example, that their primary purpose is to make money and, therefore, they are not caught by this bill; that, indeed, would be perverse.
The committee also recommended the retention of the current provision on legal costs, which exempts ISPs from costs orders if they do not enter an appearance. Again, there had been considerable argument that this provision should be removed. However, Labor and government senators took the view that ISPs should have this protection. The burden of site-blocking necessarily falls on ISPs, even though they cannot reasonably be held responsible for the pirate activity of foreign websites accessed through their services.
The committee also asked the government to clarify its intention as to how the broader question of compliance costs would be settled between rights holders and ISPs. When the government proposed this legislation in its discussion paper on online piracy released in July last year, it indicated that:
Rights holders would be required to meet any reasonable costs associated with an ISP giving effect to an order and to indemnify the ISP against any damages claimed by a third party.
The bill before the parliament, however, is silent on this point, and I look forward to the government's explanation on this issue.
Finally, the committee considered the application of the bill to virtual private networks or VPNs. The prospect that VPNs—which have a range of legitimate applications, not least in personal privacy and security—could be blocked under this bill has caused some concern in the community. The committee wanted to ensure that this prospect was clearly ruled out, and the government has agreed to do so, in the explanatory memorandum to the bill.
As I have said, this bill will make a contribution to the work of reducing copyright piracy in Australia, but it is not a panacea. It is a fairly modest addition to the suite of remedies available under the copyright law. However, the Greens party has sought, for political purposes, to whip up great fear and anxiety about the bill. The bill creates a judicial remedy to deal with conduct which flouts Australian law, but the Greens party calls it an internet filter. The bill is, by virtue of the strict primary purpose test, closely confined. But the Greens party claims that this bill, which is of course a matter only of civil law, will criminalise all manner of websites and platforms.
Labor is satisfied that this bill is not over broad. We do not expect its operation to be controversial. But, as I said, it is not a panacea, and it is clear that this bill, and other measures which seek to deter copyright infringement, can only ever be part of the answer. We must encourage the adoption of legitimate online services and the consumption of legitimate content. No legislative measure will deal with piracy more effectively than the provision to the Australian market of a broad range of content in a timely and affordable manner. This is, at the end of the day, a matter for business and not for government to address. Business practices must work with, not against, modern technology. There has been significant progress in this direction in recent years, and I hope there is more to come.
What government can do, though, is to make sure that our copyright laws are updated for the digital era. Though it is fair to legislate to deal with piracy, we should also look after the interests of consumers, schools, libraries, and digital business. While the government has now pursued several antipiracy measures, they have made no progress on broader copyright reform, even though the Attorney-General promised nothing less than a complete rewrite of the act, shortly after he took office.
The Attorney-General received the Australian Law Reform Commission's report on copyright in the digital economy in November 2013, and yet, incredibly, the government is yet to respond to its recommendations, let alone act on any of them. This is not good enough. Copyright law is too important for us to let it fall into obsolescence. For this reason, I, like my colleague in the House of Representatives, will be moving a second reading amendment calling on the government to respond to the commission's report. This second reading amendment has recently been circulated in its revised form. I move:
At the end of the motion, add:
but the Senate:
(a) notes that the Government has not responded to the House of Representatives Standing Committee on Infrastructure and Communications report on its inquiry into IT Pricing; and
(b) calls on the Government to respond to all of the recommendations made by the Australian Law Reform Commission in its report 122 on copyright in the digital economy by 17 September 2015.
It is with no pleasure that I rise today to address the Copyright Amendment (Online Infringement) Bill 2015, hot on the heels of a Labor opposition that appear to be doing nothing more than going through the motions and are no longer even really deserving of the name. This is a bill that is at once lazy and dangerous. I will go into my reasons for believing those things. It is lazy because, as Senator Collins has quite rightly pointed out, since November 2013 the Australian government has had in its hands the Australian Law Reform Commission's report from quite a broad ranging inquiry into how to update our antiquated copyright regime for the 21st century. Not only has it done nothing to address those quite sensible and far-reaching recommendations, it has cherry picked an element that was not even canvassed in the report and brought that forward because it gives it the impression of having done something and it directly answers to its cashed-up donors and lobbyists, which, we are well aware, is how this government works. So it is lazy from a policy point of view and it is also lazy politics.
It is dangerous because it does create the architecture of a second internet filter in this country. Senator Collins referred to it a couple times as modest. Perhaps it is a modest little filter, but from little things big things grow. This is not the kind of growth that we would be supporting. In a moment I will go into a bit of detail about the current state of play with site-blocking regimes in this country. But, just for some context, on 17 June the Electronic Frontier Foundation, in the United States, which is a leading advocacy organisation for digital rights in the US, pointed out—and this is in the submission to this bill that the EFF put up—the following:
As a bill purportedly meant to address copyright infringement, it is inevitably ineffective and offers little benefit. However its detriment is very clear, in that it further legitimizes the practice of website blocking. This will make it more difficult for Australia to take a stand against these practices when practised by authoritarian countries, and to resist pressure from domestic special interest groups to block more and more categories of content that they may find offensive or undesirable.
Does anybody here in this debate, whatever side of it you may be on—whether it is the stale bipartisan consensus down at the other end of the table or if it is up at this end—seriously believe that this scheme will not be expanded in the future to cover more categories of content? Of course it will. It has scope creep absolutely built into it. It is lazy and it is dangerous.
Those who follow technology policy in this country might recall a forum that was held by the member for Wentworth, Mr Turnbull, in August 2010. At that time the coalition, after the Greens and others had been campaigning for nearly 3 years, had finally got on board with blocking Senator Stephen Conroy's much maligned internet filter. They had finally been persuaded by the strength and breadth of the campaign against the internet filter that they were going to oppose it. Of course, that then lets their opposition spokespeople off the leash to be able to say that of course they thought that way all along. I was not at this forum, but it was quite well written up. At the Paddington RSL in August 2010 then opposition spokesperson Turnbull, in quite a jovial mood, said of the Labor Party's filer scheme:
It's dead, buried and cremated, and if it shows any signs of revival it will then be exorcised
He said that filtering is an idea that should have been 'put-down long ago' because:
It was simply not workable. It was a really bad idea that could only have come from people that didn't actually understand the internet.
That, I guess, is the kind of hypocrisy that tends to infect a debate such as this. From opposition, you can be against it, once you have finally been persuaded by the strength of actual opposition in the community and amongst advocacy groups. But, from government, here it comes.
There was also the rather extraordinary debacle of an announcement in 2013 of this government's filter. I think that lasted about four hours before it was knocked over. Mr Fletcher was involved and there was some potential involvement of Mr Abbott. It appeared that Minister Turnbull was either blindsided, or simply had not read the briefing materials that were put to him, when the opposition actually launched an internet filter proposal right before the election. Within about four hours it was dead. They had backflipped and it was gone. It is the kind of thing that nobody in their right mind announces in the run-up to an election campaign, but the government, knowing that the opposition is basically AWOL, feels reasonably confident that it can introduce a measure such as this.
As I said at the outset, the government is setting in place not one but two filtering schemes and both—in very different ways, actually—are very interesting case studies of how not to regulate the internet. In the ashes of Senator Conroy's mandatory internet filter, where sites would be blocked against a rather poorly defined blacklist of websites, Senator Conroy came up with another rather remarkable and expansive interpretation of section 313 of the Telecommunications Act. Basically, the interpretation was broadened to imply, quite directly, that the government agency under that section of the act could fax—and apparently they do still use faxes, so who knew?—a telecommunications company ordering them to block from viewing within Australia a site that they believe has content that is breaching the law. A House of Representatives inquiry set up by Minister Turnbull to look into that scheme recently rubber-stamped the practice and said that at some point somebody should get around to coming up with some guidelines. In the meantime, that House of Reps inquiry thought that it was fine that an unregulated internet filter, that an unknown number of government agencies, could simply fax service providers and tell them to wipe out sites for a variety of different reasons. So at least the regime that we are dealing with today provides for court orders—we will get to them in a moment.
The law of unintended consequences already hit the section 313 filtering set-up pretty hard. ASIC already used it to accidentally wipe out about a quarter of a million named sites—not all of them active; in fact, as I understand it, the majority of them were simply parked. But just through a simple misunderstanding of how the technology works, a quarter of a million sites were wiped out. Because the system is basically unregulated, there is no right of reply. There is nobody that you can call. The operators of one of the sites in question wiped out by ASIC's enormous overblocking attempt ended up having to come to parliament to find out where their website had gone and why it could not be served within Australia anymore. From the way that this bill is written, it is clear that the government simply does not understand the technology or perhaps, more likely, just does not care.
The second filter that we are legislating today that the Greens will be opposing is not going to be used by the government to block whatever website it wants—and that is a very, very important difference. It will, instead, be used by copyright holders and rights holders to block whatever website they want. Let's go through a few of its failings more directly. During the inquiry into the bill, major companies, including Amcom, iiNet and Google—and even some of the bill's supporters—emphasised that blocking websites will not stop people from accessing content. Amcom and iiNet both put in their submissions that site blocking is unlikely to be an effective way of dealing with online copyright infringement. Google said:
There is increasing evidence to suggest that site-blocking is not the most effective means of stopping piracy.
They did not leave it there, obviously, because there are a lot of good ideas on the table about how to stop piracy. If people are determined to pirate content, it is very difficult to stop them. There are dozens of ways of getting around a website being blocked, ranging from using a virtual private network—or a VPN—to using one of many streaming apps or websites, or just getting hold of the files on a USB stick and running them from there. Choice noted in its bill inquiry submission that circumventing a website block is not very difficult.
The only effective way to deal with copyright infringement on the kind of scale that the government is concerned about is to just make it available: conveniently, affordably and in a timely way. The distribution model—where you could sit on your 20th century distribution bottleneck, put a property up on screen and then wait for two months and do the TV release, and then wait another two month and release it on DVD—is broken. That model worked before the internet existed. Rather than coming up to speed with that fact and offering content in a timely, convenient and cost-effective way, the rights holders—who have collectively donated around $4 million to those parties who are today championing their cause—have called on the government to legislate. They finally found a pushover of an Attorney-General and an opposition too weak to be bothered to turn up to the fight.
We know this, because the House inquiry into IT prices in Australia identified ways of wiping out copyright infringement as being quite simple: just make the content available and then people will use the appropriate channels. The House inquiry into IT prices looked into the so-called Australia tax where content providers, software developers and others treat Australia as an island market where they can charge much higher prices and release stuff much later. When that falls down and people then take the step of infringing copyright, these very same interest groups, having written out their cheques to the Labor Party and the Liberal Party, come in expecting legislation for their benefit.
That inquiry recommended, for example, that consumers have a right to use evasion techniques to access geoblocked content from being accessed in Australia. I do not actually think this is an issue that is going to be particularly controversial. Minister Turnbull has been pretty upfront. He says avoiding geoblocking techniques should not be illegal. The IT prices inquiry certainly found that it should not be, so I propose to test goodwill on that proposition by moving an amendment when we get to the committee stage.
Of course the government has not responded to that report either. So what we see again is that element of laziness: bring forward a site-blocking mechanism but don't deal with the broader more nuanced elements of the way copyright policy needs to change to stay up to date with what technology is doing.
If you want evidence that people are willing to pay for content and will not pirate it, if it is available, look at the launch of Netflix in Australia not that long ago, which has seen an extraordinary take-up in service. One month after its launch this March, Netflix reportedly now accounts for a quarter of iiNet's traffic. They are struggling to keep up. They are hardening up and improving their infrastructure. A quarter of iiNet's' traffic, according to one report that I saw, is people using Netflix: people paying for content; people who were not able to access the material through other channels are now stampeding through iiNet—and I am presuming Telstra and others are seeing the same in their traffic.
So it is lazy legislating. If you want people to stop ripping stuff off—and I am an artist; I come from an arts background and I want artists to get paid, particularly Australian ones—make it available. Stop trying pretend that it is still the 20th century and that the internet does not exist.
If experience has taught us anything, we get this ineffective site-blocking regime, which I think has quite dangerous seeds within it for expansion and scope creep. On the other hand, with the mechanism that now exists, every filter that has been tried or trialled has had unintended consequences and overblocking.
Labor's first internet filtering scheme quite notoriously listed the website of a Queensland dentist and a tuckshop consultant on its black list. ASIC, as I said before, inadvertently knocked over 250,000 sites. The parliament's own internet filtering scheme—I suspect there is not a senator or staffer in this building who has not seen the parliament's blocked list message for some piece of content that might have a word taken out of context . It blocked a News Limited former website, The Punch—I am not even sure why; I have had similar experiences with other completely harmless sites. These things are actually very difficult to keep accurate, given the volume of content that is out there.
The Australian Christian Lobby already called for the filter to be extended to cover completely legal pornography sites. I know not that many people take them all that seriously—although some in the coalition probably still do—so, arguably, they might be seen as a voice from the fringe and one not to pay too much regard to, but they do have very senior access to Liberal Party spokespeople and ministers. And they called it a no-brainer—a mandatory clean-feed. If you wanted to see categories of content that the Australian Christian Lobby does not like, you would have to put yourself on an opt-in list; you would have to be listed as wanting to see things that the Australian Christian Lobby disapproved of. I understand that they may be seen as voices from the fringe, but that was a serious proposition that they put forward, as they welcomed Mr Turnbull and Senator Brandis's announcement of this—
Speaking of voices from the fringe, Senator Macdonald, I am so looking forward to your contribution. I will hurry along because I know you are very eager.
Both the Minister for Communications and the shadow Attorney-General have stated that the bill is not intended to catch legitimate services like virtual private network providers, but the bill does not make it clear. Again, I am hoping that this is a relatively uncontroversial amendment. VPNs have a very wide variety of legitimate uses, and I think it is extremely concerning that this bill has left vague the fact that it may be possible for a court to decide that the primary purpose of VPN services is to facilitate or to infringe copyright.
The structure of the bill makes it very clear that, at least after the first several actions, it is very unlikely that these blocking injunctions, that will come, most likely, from foreign rights holders, will be blocked either by the affected website owners—who may be based overseas and who are not necessarily going to want the expense of defending an Australian legal case—or the ISPs. So why would the service providers, particularly after the first couple—we can assume some goodwill here but maybe not hope that it would extend too far—be fronting up expensive legal cases in defence of their users? iiNet did that—they took that all the way to the High Court—and iiNet has been quite ferocious in defence of their users' privacy. This bill appears designed to circumvent that kind of goodwill and make it very expensive or very costly in the future.
The experience in the UK, where a similar regime prevails, shows that ISPs are likely to only contest the first few injunctions before waving through most of what comes afterwards. And that—again, to foreshadow—goes to why we have proposed, in another of our committee stage amendments, that much wider standing should apply, so that the courts can hear from affected third parties or others who might want to put a public interest point of view or who have a private interest even though they are not the ISP or somebody more immediately affected.
Say, for example, you use a cloud hosting provider, or you use a particular service for business purposes, and you suddenly find one day that it has been wiped out and you can no longer reach it. You may have nothing to do with breaching copyright, but a court somewhere has decided that it was facilitating copyright infringement. What right do you have to contest that application in court if your private data is no longer available to you or your business in this country? That is the kind of risk that we are playing with here.
So, when it comes to the end of this debate—and I understand very few speakers have been put forward—we will be moving a second reading amendment, and I will foreshadow it now. I will move now, for voting on later in the debate, that this debate should be adjourned. Our amendment is quite similar to an amendment that the Labor Party moved in the House, and it is again a little bit similar to what Senator Collins foreshadowed, except that our amendment would have some practical effect. It is not rhetorical. We propose that this bill debate be adjourned until the government has responded to the ALRC's review of copyright reform of November 2013. Senator Collins name-checked it on the way through, and quite rightly so. That was where this agenda was last canvassed in a reasonably broad and consultative way by people who were not simply the rights holders. There were $4 million in donations to the major parties. That kind of influence is not something that the ALRC was subjected to. So I hope that we will get support that this debate should not proceed and a vote should certainly not proceed until those bigger issues have been looked at.
I think, as I said at the outset, that this bill combines elements of laziness, and it is also dangerous and it is not something that we should be rushing forward. It is a bill that, in my view, appears designed to expand, down the track. So I would call on the Labor Party this afternoon to actually be the opposition and try and hold this government to account, for a change, in defence against not just the unintended consequences but the quite real consequences of passing the bill in its present form.
Isn't the Senate lucky that we have got someone with Senator Ludlam's expertise here to help us with these bills! Nobody else, apart from Senator Ludlam, understands this! Everybody else has got it wrong and only Senator Ludlam is correct! Because this is recorded in Hansard, can I just say to Hansard: this is said with irony, because I certainly don't believe it—but Senator Ludlam clearly does. Everybody else who has spent a lot of time and work on this is, according to Senator Ludlam, lazy. It is only Senator Ludlam who knows and understands these issues!
This is a complex area. I contributed to this bill, the Copyright Amendment (Online Infringement) Bill 2015, as the chairman of the Legal and Constitutional Affairs Legislation Committee, which looked at this bill in some detail. And I recognise the work done by Senator Collins, and it was quite considerable, and my colleague Senator O'Sullivan, which formed the basis of the intense investigation into this bill.
Senator Ludlam got himself put on the committee so that he could contribute his expertise, but, regrettably, when it came to the hearing, Senator Ludlam was nowhere to be seen. So he did not bother to turn up and question witnesses—because he knows it all! He knew what their answers would be! Now he chooses to come in here and accuse everyone else who has spent a lot of time on this of being 'lazy'. But I have confidence, first of all, in my committee, and, clearly, in the Department of Communications and the Attorney-General's Department, who have put a lot of work into this very important area.
Online copyright infringement does pose a significant threat to the viability and success of Australia's creative industries. Infringement currently occurs on a large scale. Therefore, rights holders need effective mechanisms to reduce the incentive for infringing practices. The committee came to that view after investigation, and I want to thank Senator Collins and Senator O'Sullivan, who carried the brunt of this work. I also recognise the secretariat staff who, as always, put an exemplary effort into considering all of these bills, looking at the submissions to make sure every i is dotted and every t is crossed in sentences and assisting the committee in the recommendations that it brings to the parliament.
I take some pride in the fact that this is a committee that does not hesitate to recommend amendments to government legislation or, at times, even to recommend against the bills. This is a committee that treats its work as a committee of parliament very seriously, and this is the case in this particular reference. I alert the Senate to the committee's report, and I recommend the committee's report for anyone who wants to follow this issue. It is a balanced report. It sets out the key issues and the background and then gives the committee's view on the bill and on recommendations that the committee might make. For anyone interested in this subject, have a good read of the report. Although it is a complex area, readers will then know a little bit more about it.
The committee did consider that proposed section 115A(5) of the bill may be too prescriptive in requiring a court to consider all the listed matters in every application for injunctive relief. The committee took the view that the court should be able to exercise discretion in identifying the salient features of each matter on a case-by-case basis, so the committee made the recommendation that the bill should be amended to provide for that. I am delighted to say that, in the other chamber, the government did accept the recommendation and amended the bill, and it passed with that amendment. I am delighted that the government has looked at that.
As a committee, we acknowledge the evidence given by the Department of Communications regarding VPNs. But the committee noted that the bill does not explicitly contemplate the introduction of injunctions against VPNs. The committee also notes that VPNs are unlikely to meet the primary purpose test that is proposed in proposed sections 115A(1)(a) to (c). However, the committee would be reassured if the government were to clarify the status of the VPNs in the explanatory memorandum, and I understand that the government has done that.
The committee also recommended that the explanatory memorandum be amended to specify that 'reasonable steps to disable access to an online location' may include a requirement to post a landing page at the blocked online location specifying the relevant online location has been blocked by order of a court and outlining details of the order. That came about as a result of submissions made to the committee by those in the industry who pointed out that that was an important part of the process.
The committee also noted that the bill was preceded by a regulatory impact statement but no formal cost-benefit analysis and, as such, the committee received no information that provided a comparison between the expected benefits to rights holders and the potential cost to other parties. Although this did not affect the committee's ability to determine the merits of the proposed legislation, it does lead the committee to give consideration to the recommendation of the Internet Society of Australia. They said in their submission that the government should review the effectiveness of the bill one year after its enactment and that the review should include the number of sites and locations blocked, the number of sites and locations that continue to provide access to the alleged infringing material, the cost to CSPs of implementing requirements of the bill and the practical effectiveness and ease of bypass of the methods used to implement blocking.
Some of the matters raised by our expert senator—Senator Ludlam—in his address previously could be looked at and some actual data obtained. The committee recommended that government conduct a formal review of the effectiveness of the act, to be completed two years after its enactment. That is a recommendation that I do think makes some sense. It was mentioned by some of the submitters, and the committee accepts that view.
There was a lot of evidence on the costs to various parties. The committee took the view that the question of costs should be a matter for the court to determine on a case-by-case basis. The committee notes that, in the absence of malice, a nonparty to proceedings would not normally be liable for costs. As such, the committee questioned the utility of the proposed section 115A(9), which, in the opinion of the committee, serves only to confuse the issue of costs. There was evidence from the Communications Alliance—I think it was—on this aspect. It was something that the committee looked at quite closely. We did note the persuasive evidence of service providers to the effect that a CSP bears no fault or liability for the infringement of copyright by its subscribers and, because of that, the CSP should not be required to contribute to the cost of the remedy. The committee was of the view that more clarity is required to reassure CSPs that the costs associated with site blocking will primarily be borne by those parties who are actually seeking the remedy.
Finally, in noting that compelling evidence regarding the need to indemnify a CSP for acts done or admitted to be done in compliance with court orders, the committee had some regard to the reasoning of Justice Perram in the Dallas Buyers Club v iiNet case, but urges the government to provide greater clarity on the issue of the CSP indemnity from consequential actions. Accordingly, the committee recommended that the explanatory memorandum be amended to provide greater clarity and guidance on the issue of service provider cost and liability subsequent to the service provider's compliance with court orders made under the proposed amendment to section 115A. I understand the government has done that and, with those qualifications, the committee recommended that the bill be passed—even if, according to Senator Ludlam, it is completely useless and of no benefit. Those who attended the hearing, those witnesses who gave evidence, the two departments and many other people are, dare I say, as versed and as knowledgeable as Senator Ludlam—although from what I hear Senator Ludlam say, that would not apply to anyone in the world. But I go on the side of the vast majority of experts, who agree with the committee that the bill should be passed.
In concluding, can I thank all of those who took the time to make a submission to the committee to make sure their views were considered before the matter came to parliament. I thank those committee members who actually turned up—which, I repeat, does not include Senator Ludlam, who knew so much that he did not need to bother attending the committee. And can I again thank the secretariat staff who, as usual, produced an excellent paper on the subject that encapsulates the committee's views. I urge that the bill be passed.
I rise to oppose passage of the Copyright Amendment (Online Infringement) Bill 2015. I do so because the bill is vaguely drafted and unlikely to achieve its aims. In addition, it aims to protect rights holders at everyone else's expense, which is not how the rule of law is supposed to work. The bill seeks to amend the Copyright Act 1968 to enable rights holders to obtain an injunction to block foreign-based online locations whose primary purpose is to infringe or facilitate the infringement of copyright. Website blocking is a drastic remedy and a blunt tool. The bill has the potential to be used against a range of legitimate sites and has inadequate protections for non-party interests. Meanwhile, placing increased emphasis on enforcement without addressing the other overdue reforms of the Copyright Act risks a ridiculously unbalanced copyright regime.
Australia already lacks a general fair-use defence to claims of breach of copyright. This is why, to take one recent and very silly example, NSW Premier, Mike Baird, was forced to take down his amusing 'mean tweets' video before the last state election—not because some of the tweets contained filthy language, but because of some of the music he used in the background to his video. There is a desperate need for reform of this area of the law, but it has been left untouched. Instead we have been presented with a piece of legislation that fails in several respects. First, it has inadequate protections for freedom of speech and freedom of access to information, which could result in access to legitimate content being blocked. Affected parties such as consumers and institutions are unable to seek revocation or review of injunctive orders. There is no extension of safe harbours, which would provide rights holders with a simple way to take down infringing material, or for ISPs to distinguish themselves from a copyright infringer using their services. There is no oversight nor any indemnities to track and protect against overblocking or other technical issues. There is a serious possibility that online tools and dual purpose sites such as VPNs, cloud storage, URL shorteners and compression tools may be blocked. As people in this place know, we—parliamentarians, our staffers and parliamentary employees—all use a version of a VPN in order to log into the Australian Parliament House website remotely. Whenever we log into the APH network with our remote access tokens, our location is always seen as Canberra. This alone suggests that little thought has gone into the drafting of this bill. It is a bad idea to draft in haste and repent at leisure.
I will support the Greens' amendments to this bill and, if they pass, I will reconsider my opposition to the bill. However, that none is expected to pass reflects poorly on Labor and the coalition and their once proud tradition of support for innovation and technological progress in this country. Once again, this is very bad law.
Can I thank those who have spoken in relation to the Copyright Amendment (Online Infringement) Bill 2015. Australian art, music, literature, film and television are a treasured part of the Australian way of life. A world without creative works would be a world with much less colour. The creative industries are also a major driver of economic growth. According to a 2015 report, Australia's creative industries employ over one million people and generate economic value of more than $111 billion, including $4.8 billion in exports. It is therefore essential that we provide incentives and rewards for creators and appropriate protections for the fruits of their labours. These incentives, rewards and protections can only be provided through a robust copyright framework.
Online copyright infringement is highly prevalent in Australia. There is a range of reasons why Australians choose to infringe copyright. It is a complex problem. There is no single cause and no single solution, but a key part of the equation is the constant, ubiquitous supply of infringement content. In this digital age all forms of information can be disseminated freely and easily to a far greater extent than ever before. With the good comes the bad: content into which artists have invested years of effort, and their life savings, can be shared in seconds, at no cost, without their permission.
Supply of infringing copyright material is delivered efficiently, relentlessly and on a large scale to the homes of Australian consumers. Foreign based online locations are often responsible for these operations. The operations of these online locations not only derive enormous profits from their infringing activities but often use these profits to fund other serious criminal activities. If unchecked these infringing online locations will drive legitimate distributors and creators out of the Australian market in spite of their best efforts to change their business models to suit the desires of Australian consumers.
The price and availability of content in Australia has also been cited many times as the key cause of online copyright infringement. It is certainly an important contributing factor. Australian consumers do not want to pay more for their content or wait months longer to watch it than consumers overseas. However, copyright owners have come to realise this and they are taken steps to address it. For example, they have acknowledged that it has been a mistake to delay the release of content in Australia. They have made significant efforts to improve the availability of affordable and timely content for Australians. The recent launch of movie streaming services such as Netflix, the early release of films in Australia and the lowering of entry-level prices on pay-TV packages have been notable steps in the right direction.
Consumer behaviour forms the final part of the equation. The internet has brought unprecedented freedom to access information, a freedom to which the majority of Australians are now accustomed. Australians no longer discriminate between information that is available legitimately and content that they do not have permission to access without paying the price that the content owner is entitled to ask for. Australians love creative content. They value it and they want to enjoy it, not destroy it. They need to be reminded that, if they take too much without giving back, they will jeopardise the production of the content that they love. It is, therefore, important that the bill is complemented with other measures that educate users about respect for copyright. One important initiative is the industry code that has been developed by internet service providers and rights holders. It is intended to provide a mechanism to warn Australian consumers of the consequences of copyright infringement and inform them of legitimate sources of content. It is currently being considered by the Australian Communications and Media Authority, and I am hopeful it will soon be registered and in operation.
At present, copyright owners have no effective means of combating the wholesale infringement of their rights. Direct infringement proceedings against foreign based online locations are fraught with difficulty. These are the challenges of enforcement. The territorial nature of copyright means that copyright owners often face complex issues of private international law when enforcing their rights in the online environment. The legal complexities and the possibility that copyright owners will need to attend foreign courts to enforce their rights means that any direct proceedings against a foreign online location are likely to be prohibitively costly, particularly for lesser known copyright owners. It is also not practical to bring proceedings against individual infringers where infringement occurs on a large scale.
This bill provides copyright owners with an efficient mechanism to disrupt the supply of infringing content to Australian consumers. This bill will provide an enhanced streamlined mechanism that enables infringing material to be blocked by a carriage service provider without the need to establish fault on the part of that provider. Specifically, the bill will introduce a new provision that allows rights holders to apply to the Federal Court for an order directing a carriage service provider to enable access to infringing online locations located outside Australia. There are a number of safeguards to ensure that the power does not unduly encroach on other important public and private interests. First, the provision will only capture online locations where it can be established that the primary purpose of the location is to infringe copyright or facilitate the infringement of copyright. Second, the court may consider a broad range of factors that reflect competing public and private interests. These factors include, for example, the flagrancy of the infringement or its facilitation; whether blocking access to the online location is a proportionate response in the circumstances; and the overall public interest.
The Senate Legal and Constitutional Affairs Legislation Committee recommended that the bill be passed subject to four other recommendations. The government would like to thank the committee for its work, and all those who put in submissions. The government has accepted all of the committee's recommendations, which have been addressed by the amendment made to the bill in the House of Representatives and through the explanatory memorandum that accompanies the bill before the Senate. In response to the committee's recommendation the bill now gives the Federal Court discretion to take into account specified matters in deciding whether to grant an injunction rather than being required to take these matters into account and what weight to place on those factors. This is consistent with the approach normally taken by a court in assessing whether to grant an injunction.
The government has also included more guidance in the explanatory memorandum as a result of the committee's recommendations. We have clarified that the appropriate orders which the Federal Court may make in granting an injunction could include a requirement that parties set up a 'landing page', where subscribers will be diverted if they try to access a disabled online location. We have also clarified that, consistent with case law, carriage service providers should not be exposed to legal actions by subscribers as a result of acts or omissions in compliance with an order and that the court has discretion to make appropriate directions on the cost of implementing an order. The explanatory memorandum also provides additional detail on the operation of the primary purpose test. Specifically, an online location could have the primary purpose of copyright infringement even if it operates in such a way that it derives profits from advertising revenue. Finally, the explanatory memorandum addresses the application of the provision to virtual private networks (VPNs). This is a concern that was raised during the committee process. On this point, the government wishes to stress that the bill is not intended to capture VPNs which are promoted for legitimate purposes or which are merely used to access legitimate copyright material distributed in a foreign geographic market. VPNs have a wide range of legitimate purposes. Providers of VPNs have no oversight, influence or control over their customers' activities. The government has also committed to review the operation of the bill 18 months after its commencement.
I would like to briefly comment on the status of other copyright inquiries and reviews. First, the government has been clear that its first key priority is to address online copyright infringement. This has been a growing problem over a number of years, which has not been properly addressed. For example, the previous government attempted, through an Attorney-General's Department round-table process, to develop an industry agreement, but without success. We have now had the opportunity to deal with this issue properly. Second, the government has not lost sight of the need for broader copyright reform. The Attorney is on the record as saying that the act is long overdue for a rewrite; however, the debate surrounding the current bill illustrates just how complex copyright reform can be. While others may rush to easy conclusions, the government is committed to a genuine reform process. In the meantime, the government continues to develop copyright reforms that respond to pressing needs. For example, last week we tabled the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled and a related National Interest Analysis, and referred it to the Joint Standing Committee on Treaties.
In conclusion, this bill forms an important part of the solution to the longstanding problem of online copyright infringement. It targets the systematic supply of infringing-copyright material on a large scale by foreign based online locations that often derive profits from infringement. This will provide breathing space for the legitimate market, so that innovative distribution models that provide competitively priced and timely content can properly flourish in Australia. The bill provides a proportionate, balanced and effective solution which takes into account other important public and private interests. I conclude by thanking all senators who have contributed to the debate on the bill. I commend the bill to the Senate.
At the end of the motion, add:
but further consideration of this bill be made an order of the day for the first sitting day after the Government has tabled its response to the Australian Law Reform Commission's report 122 on copyright and the digital economy.
Senator Ludlam, I want to confirm that your amendment on sheet 7731 has been withdrawn. Is that correct? That being the case, the question is that the bill be read a second time.
Original question, as amended, agreed to.
Bill read a second time.