Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

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.

While the digital revolution has created enormous benefits for our society and our economy, it has also been highly disruptive. The rapid expansion of online services has also created many new challenges for law enforcement. But we in Labor do not believe the online world should be allowed to exist as a lawless frontier. To the contrary, we in Labor understand the importance of effective regulation in this area, whether it's to stop the selling of illegal weapons, to shut down the vile trade in child pornography, to prevent online radicalisation of Australians by terrorist groups or, as this bill does, to prevent the theft of intellectual property.

This bill makes important improvements to the Copyright Act that will help to ensure it continues to protect intellectual property rights in the digital age. We in Labor recognise the vital importance of Australia's creative industries. Our musicians, our filmmakers, our TV production industry and our artists all contribute enormously to our society in both economic and cultural terms. The stories that Australians love most are our stories—stories about our nation, our history and our people. Whether on TV, on the big screen or in books, these stories are all produced by people who rely on copyright laws to protect their creative work. It is copyright laws that ensure that those in our creative industries are paid for the work that they do.

Chapter 9 of Labor's National Platform is entitled 'A fair go for all'. At paragraph 300, the ALP sets out the importance of maintaining copyright in the following terms:

The legal framework of copyright is necessary to ensure the income generated by arts, culture and heritage is fairly distributed between the creators and the institutions and entrepreneurs who make it available. A successful copyright framework will support the education, arts, culture, and heritage of Australia by:

Our policy on copyright is consistent with our long-held view about the importance of arts and culture in our lives.

Gough Whitlam talked about the arts as central to the lives of Australians, and his words remain fresh today:

In any civilised community the arts and associated amenities must occupy a central place. Their enjoyment should not be seen as something remote from everyday life. Of all the objectives of my Government none had a higher priority than the encouragement of the arts, the preservation and enrichment of our cultural and intellectual heritage. Indeed I would argue that all the other objectives of a Labor Government - social reform, justice and equity in the provision of welfare services and educational opportunities - have as their goal the creation of a society in which the arts and the appreciation of spiritual and intellectual values can flourish. Our other objectives are all means to an end; the enjoyment of the arts is an end in itself.

When last in government and over the last five years of opposition, Labor has been working to support sensible changes to our copyright laws to ensure that they remain fit for purpose in protecting our creative industries and our artists. One of the most significant threats to the music and screen industries since the advent of the internet has been the rise of online piracy, because online piracy undermines the capacity of creators, including musicians and screen industry professionals, to sell their work.

To help reduce online piracy, in 2015 Labor worked with the government to introduce amendments to the Copyright Act 1968 that allow the courts to issue site-blocking orders that oblige carriage service providers to block access to identified pirate sites. These site-blocking injunctions can only be issued by a judge and only for websites outside Australia that are proved to have the primary purpose of infringing copyright material. This regime under section 115A of the Copyright Act is necessary because many pirate sites operate in overseas jurisdictions with lax copyright laws. The pirate sites operating in these foreign jurisdictions are generally out of reach of Australian law enforcement, yet the damage their sites do to our creative industries and so to our economy is considerable.

Representatives of our creative industries and artists in Australia are very supportive of the regime introduced by section 115A, and since 2015 these reforms have been successfully used to block a number of pirate sites, with a measurable drop in the rates of online copyright infringement in Australia. However, rates of online copyright infringement in Australia remain high in contrast to comparable overseas jurisdictions, and new forms of copyright infringement are always being developed as the digital world rapidly changes.

This bill responds to the ongoing challenge of online piracy by strengthening the site-blocking regime in section 115A of the Copyright Act. In summary, this bill will, first, expand the services that can be subject to injunctions to include online search engine providers such as Google, in addition to carriage service providers such as Telstra, to compel the provider to take reasonable steps to not provide search results that direct users to copyright-infringing websites. This measure is intended to reinforce the regime by ensuring that searches do not provide easy pathways to already blocked copyright-infringing sites through alternative pathways and web addresses.

Secondly, this bill will allow injunctions to be sought to block access to sites with the primary purpose or the primary effect of infringing or facilitating the infringement of copyright. This addition of the words 'primary effect' is a significant expansion of the scope of the site-blocking scheme, which had been limited to sites with the primary purpose of infringing copyright only. Stakeholders had been concerned that new websites such as cyberlocker sites, which are frequently used for copyright infringement through file sharing of music, movies and TV shows but which it is difficult to prove exist for that primary purpose, fell outside the scheme. It's expected the addition of a primary effect test will bring such sites within the scheme but without unduly widening its scope.

Thirdly, this bill will also allow the courts to issue more flexible injunctions that can be adapted to maintain a blocking order without the applicant having to return to court for a new injunction when pirate sites change addresses or access pathways. These adaptable injunctions will provide for the blocking of additional domain names, IP addresses and search results, by agreement with the copyright owner and the service provider.

Fourthly, this bill will also help to avoid wasteful and difficult evidential inquiries for applicants to establish the location of web-hosting sites by putting in place a rebuttable presumption that an online location is outside Australia.

Finally, this bill includes a measure that will enable a minister, by disallowable instrument, to declare that particular online search engine providers or a class of those providers are exempt from the scheme. This last measure is essentially a safeguard to ensure that injunctions are directed only against larger service providers facilitating the infringing of copyright.

Creative industry representatives in Australia that Labor has been consulting with have already indicated support for the changes proposed in this bill. This includes our music and screen production industries. We know that the search engine providers have been actively involved in the battle against online piracy, and we trust they will continue that battle. Although some companies and individuals have expressed concern about the potential for this bill to be used inappropriately to shut down legitimate sites, we in Labor are satisfied that the bill contains adequate safeguards to prevent its misuse. In particular, I would point out that injunctions can only be issued in narrow circumstances by a Federal Court judge, with the onus of proof on the applicant seeking the injunction. In making a decision whether to issue a site-blocking injunction, judges may take into account a wide range of factors. Under subsection (5) of section 115A of the Copyright Act, the court may take the following matters into account, among others:

(a) the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement …

…   …   …

(c) whether the owner or operator of the online location demonstrates a disregard for copyright generally;

(d) whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;

(e) whether disabling access to the online location is a proportionate response in the circumstances;

(f) the impact on any person, or class of persons, likely to be affected by the grant of the injunction;

(g) whether it is in the public interest to disable access to the online location;

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(k) any other relevant matter.

And any decision by a judge to issue an order under section 115A is also, of course, subject to appeal.

We in Labor are pleased that the protection of copyright is an area of bipartisan agreement. In the past, we've been concerned that some of this government's ill-considered announcements on policies would roll back copyright protections, such as in relation to safe harbour laws. However, Labor stood with Australia's creative industries in opposition to the government's reckless plans to diminish copyright protections and we were pleased to see that the government backed down on those proposals. Labor is pleased to see that the government has come around to understanding the importance of regulating to protect the rights of our artists and the economic viability and cultural value of our creative industries in the digital era. We support this bill as a means to further these important objectives.

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