Thursday, 18 October 2018
Copyright Amendment (Online Infringement) Bill 2018; Second Reading
That this bill be now read a second time.
Australia's copyright system provides the legal basis for supporting Australia's creative industries and ensuring that they are viable and successful. It is an essential mechanism for rewarding the creative efforts of authors, artists and musicians, and the investors who take the risks to bring creative works to the market. Our copyright system balances incentives to create and disseminate new works by allowing fair access and use of these works by Australian consumers and other users for public policy benefits.
The Australian government has made two major updates to this system over the past three years. These updates have given the disability, education and cultural sectors enhanced use of copyright material. Those reforms were long overdue and necessary to enable those organisations to go about their normal functions without harming copyright owners. Now it is time to provide our creators and copyright industries with updated tools to ensure their creative efforts do not go unrewarded.
Australian film, television and music is a major success story, and the digital age has created opportunities for consumers to access this content in new and different ways. Streaming of content through providers such as Netflix, Stan and Spotify has opened up new ways of enjoying content. The government encourages the ongoing development and rollout of these legitimate platforms because they enable Australian creators and investors to be appropriately rewarded for their efforts.
But 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 to find and are located in countries that do not have strong copyright laws.
In 2015, the government introduced a website-blocking scheme in the Copyright Act 1968 to provide a means of addressing large-scale copyright infringement by overseas operators. The scheme has been successful. Since it was introduced, a number of sites have been blocked and there has been a reduction in the rate of online copyright infringement by Australian users. Research commissioned by the film industry shows that traffic to blocked sites in the months after blocking dropped by around 50 per cent. That is an encouraging result. But in an environment that is subject to continual change, we need to make sure our regulatory protections are up to date and effective.
Australia's piracy rate still remains higher than in countries with strong copyright enforcement frameworks, such as the United Kingdom and Canada. There is still a proportion of Australian users who seek out infringing sites, and there are still pathways for them to get to these sites, including blocked sites.
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 uses 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 court order. Finally, it can be difficult and costly to determine whether an online location is, in fact, located overseas.
The bill directly addresses these concerns. It will allow injunctions to be made against online search engines, who would be required to take reasonable steps to remove search results that refer users to an infringing online location. This will remove links that allow users to discover the existence of websites that may be the subject of an injunction. Some of these appear on the first page of search results, when they should not appear at all. Search engine results can also disclose alternate pathways to blocked websites, which can undermine the effectiveness of blocking orders.
The bill will provide that an injunction may be granted in respect of an online location that has 'the primary purpose or the primary effect' of infringing, or facilitating an infringement, of copyright. This will ensure that some overseas online locations, such as certain 'cyberlockers', may be captured under the scheme. Some cyberlockers are widely used as sites for sharing infringing music and movie files. At the moment, there is doubt about whether these sites have the 'primary purpose' of infringing copyright, or facilitating the infringement of copyright. The bill will enable sites such as these to be brought within the scheme.
The bill will make clear that the Federal Court has the power to issue responsive and adaptive injunctions, without the need for the copyright owner to go back to the court. This will give the court the power to grant injunctions on terms that allow the copyright owner and carriage service provider, by agreement, to apply the injunction to block other pathways that start to provide access to an infringing site. The bill will also introduce an evidentiary presumption that will provide that an online location is outside Australia, unless the contrary is proven.
None of these measures will impede or affect the capacity for carriage service providers or search engine providers to voluntarily block or remove links to copyright infringing online locations. Indeed, if these voluntary arrangements are effective, injunctions are unlikely to be needed. However, these legislative changes provide an important fallback should industry initiatives prove to be inadequate or ineffective.
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.
I commend the bill to the House.