EFA’s 2017 Wish List

As the new year approaches, it’s again time to set out our Wish List and priorities for the year ahead.

This list repeats many of the same topics as last year as there has been little movement on many of these issues, partly due to the election interrupting the legislative programme, but also, we’d suggest, because this government is not giving digital rights issues the attention they deserve.

Copyright reform

Although almost exactly one year has passed with no action since the government released an exposure draft outlining a number of important amendments to the Copyright Act, we understand that this bill will be finally introduced early in 2017.

This bill addresses the following issues:

addresses the issue of unpublished works (see ALIA’s excellent Cooking for Copyright campaign)
removes restrictions that prevent digitisation of archives and other collections
simplifies how schools can use copyright material
enables format-shifting without prior approval for the purpose of making content available to people with disabilities (this enables the implementation of the Marrakesh Treaty but actually goes further as it includes all types of disability)
expands the copyright safe harbour scheme beyond the major telcos

We’re strongly supportive of these changes, though we don’t think they go far enough. There is some opposition to the extension of the safe harbour scheme, but the other issues are entirely uncontroversial.

We’re also expecting the final report of the Productivity Commission’s review of Australia’s Intellectual Property arrangements to be released any day now. The draft report, released in April, contained a number of recommendations which we strongly support, most notably, that Australia proceed to introduce a broad, flexible fair use exception into our Copyright Act, as proposed by the Australian Law Reform Commission in 2014. Other recommendations include abolishing innovation patents and reducing the default term of copyright, though we suspect this last one may be omitted from the final report.

There are strong views in opposition to the introduction of fair use, particularly from those with vested interests in the status quo and certain media organisations, particularly News Corp. These organisations are providing funding for a large scale campaign against the introduction of fair use so we and other supporters of its introduction have a lot of work to do to counter the misinformation and general fear, uncertainty and doubt that this campaign will almost certainly involve.

Copyright enforcement

The last 18 months has seen a clear shift in consumer behaviour in relation to consuming television and movies, with explosive growth in subscriptions to streaming video on demand services.

As a direct consequence, rates of online copyright infringement have clearly fallen, as demonstrated by some research published recently by the Department of Communications.

As the Productivity Commission stated in its draft report “The evidence suggests timely and cost-effective access to copyright-protected works is the most efficient and effective way to reduce online copyright infringement.” (Draft Finding 18.1)

We’d therefore like to see, as we’ve said a number of times, the formal abandonment of the policy of introducing a copyright infringement notice scheme (formally, the Copyright Industry Code but also known as a graduated response, or ‘three strikes’ scheme).

It’s clear that neither the ISPs nor the rightsholders wish to take on the burden of paying for such a scheme, and the effectiveness of such schemes are very questionable at best.

We’d also like the website-blocking legislation that was rushed through the parliament last year repealed. Despite being law for almost 18 months, it is yet to result in a single site being blocked, and is likely to be really effective only in creating work for lawyers.

Mandatory Data Retention

The implementation process for the mandatory data retention scheme continues to be plagued with problems and it’s still likely to be some time before many ISPs complete the work required.

Meanwhile, the one substantive change that has come into effect – the restriction on the number of agencies that are able to access this data – has resulted in a 7% decline in the number of requests for 2015-2016 compared with the previous year.

We’ll be pushing hard for a review of the data retention legislation in 2017, and will specifically call for:

the warrant requirement for access to be extended from just journalists to the entire population
no expansion in the list of agencies with access to this data
a reduction in the retention period for Internet data

Encryption

Last December, as part of a global campaign, we wrote to Prime Minister Turnbull seeking reassurance that the Australian government would not seek to undermine encryption and privacy technologies.

We received this letter in response, which states that,

The Australian government supports lawful use of modern and secure communications technologies. These technologies are critical to a modern economy that depends on trusted digital connections for businesses, individuals and governments to thrive online…The Government remains committed to working with Australian and international partners to promote an open, free and secure cyberspace. This includes the use of encryption technologies to protect personal and sensitive information and help ensure fundamental freedoms of expression and association.

We intend to hold the government to this commitment and will therefore be monitoring closely any moves to the contrary.

Stronger oversight of intelligence agencies

The Prime Minister recently announced an independent review of Australia’s intelligence agencies. We’ll be making a submission to this review, and will call for greater parliamentary oversight of these agencies, specifically by giving the Parliamentary Joint Committee on Intelligence and Security greater powers to examine operational matters, in addition to its current role which is limited to examining legislation.

We’re also hoping that this review will shed some light on the data sharing arrangements in place with Australia’s Five Eyes partners and other allies.

Privacy Reforms

We will continue to campaign for the implementation of a national statutory cause of action for serious invasions of privacy (a privacy tort) as we believe this would fill a serious gap in current Australian privacy protections.

To date, the federal government has shown little interest in moving forward with this, despite at least three state parliaments doing so.

Just this week, the NSW Attorney-General, Gabrielle Upton has called for national action on a privacy tort, and is leading a working group to progress the issue.

Similarly, NSW and South Australia are following Victoria’s lead in looking to introduce new criminal offences for the sharing of sexually explicit material without consent (or revenge porn). ALP federal MPs Tim Watts and Terri Butler have also introduced a private member’s bill into federal parliament seeking to establish federal offences as well.

While we’re always very wary of new laws that seek to restrict speech, we also believe in laws that protect personal privacy rights, and acts of ‘revenge porn’ can be truly devastating for the victims. We’re also reasonably comfortable that this legislation has appropriate exemptions for journalists and for the public interest.

Mandatory Data Breach Notification

Legislation to introduce a mandatory reporting scheme for data breaches has now been introduced into parliament at least three times.

Attorney-General Brandis made a commitment to pass this legislation before the end of 2015 as it was a condition of the support of the Parliamentary Joint Committee on Intelligence & Security for the mandatory data retention legislation.

He’s now missed that deadline by at least a full year, but we anticipate that this legislation will finally pass in 2017. Unfortunately, in its latest iteration, it has been significantly watered down and now provides significant discretion to organisations to contest what amounts to ‘a notifiable breach’. It may therefore be that this scheme, if implemented, will be largely ineffective.

Open Government

Last week, Australia’s first National Action Plan for the Open Government Partnership was released.

While the process of producing this plan was far from ideal, particularly as the public consultation period was absurdly short, we have finally reached the first step in moving towards the ideals expressed in the Open Government Declaration.

EFA was a founding member of the Australian Open Government Partnership Network, a civil society network that was established to work with government on developing and delivering on National Action Plans. We will continue our involvement in this network as the process moves forward.

Trade Agreements

While the recent demise of the Trans-Pacific Partnership (TPP) and its egregious copyright enforcement and related measures is a cause for some relief, there remain other proposed multilateral trade agreements that may contain measures that may harm Australian’s digital rights.

These include:

the Regional Comprehensive Economic Partnership (RCEP), which includes the ten ASEAN member states along with China, Japan, South Korea, India and New Zealand.
the super-secret Trade in Services Agreement, which involves 50 countries and will incorporate chapters on ecommerce and telecommunications
the Australia-EU Free Trade Agreement
and, potentially, an Australia-UK Free Trade Agreement, given the UK’s decision to exit the EU

We’re monitoring these agreements to the extent that we can, and will continue to push for a commitment to a more inclusive and transparent negotiation process for these and any future trade treaties.