The Attorney-General and Communications Minister have released a Discussion Paper setting out proposals aimed at tackling online copyright infringement.

Discussion Paper Summary

The Government has released proposals to ‘crack down’ on online copyright infringement. These proposals will force Internet Service Providers (ISPs) to act as ‘copyright police’ and will create a process for copyright owners to block websites. See the Discussion Paper.

What are the proposals?

1. Extension of ‘Authorisation Liability’

Authorisation Liability is the legal concept that someone can be held liable for another person’s copyright infringement. The High Court ruled in 2012 (in the so-called ‘iiTrial’) that iiNet had not ‘authorised’ copyright infringement by users of its internet access services. The government’s proposal is to overturn that decision by extending authorisation liability to make it easier to hold ISPs liable for copyright infringement performed by their users. Other entities, including a wide range of online consumer services (Facebook, Google, Dropbox etc) and providers of cloud-based business services could also be affected, as could libraries, universities, co-working spaces, internet cafes and even local councils and cafes that provide free wi-fi. All of these entities (‘intermediaries’) would need to do more to take reasonable steps to prevent their users from infringing copyright or would have to rely on the steps set out the safe harbour scheme (see below).

2. Extension of safe harbours

The Copyright Act contains ‘safe harbour’ provisions that currently ensure ISPs are immune from financial penalties for the infringements of their users if they follow certain steps, including having an implemented policy for disconnection for repeat infringers. The government is proposing to extend this protection to other intermediaries, such as those listed above.

3. Website blocking

Copyright owners would be able to ask a court for an order to make ISPs block access to overseas websites whose ‘dominant purpose’ is to enable copyright infringement.

What are some of the concerns?

It makes ISPs the internet copyright police, responsible for enforcing the rights of third parties
The ISPs, and therefore ultimately their users, will pay to enforce the rights of copyright owners, despite not gaining any benefit themselves
There are no safeguards to protect the interests of consumers or users
There may be unintended consequences for non-ISPs – in the past, universities and even pubs have been found liable for authorisation infringement
It will increase uncertainty and business risk
In the absence of any industry codes, intermediaries may wish to rely on the safe harbours, meaning that users will risk disconnection for infringement
There is no obligation on copyright owners to make content more readily available
There are no obligations on copyright owners to price online content fairly
There’s no commitment to fixing the other problems with the copyright system such as geoblocking or fair use

And, most of all, there is no conclusive evidence that this would actually work. So intermediaries and users will be burdened with additional costs, unnecessary red tape and uncertainty for potentially no actual benefit to anyone. Finally, this entire process avoids dealing with a number of critical weaknesses in Australia’s copyright regime that urgently require reform, including dealing with orphan works, addressing geo-blocking and the unjustifiable premium that Australian consumers routinely pay for digital goods when compared to consumers in other countries, as well as the adoption of a flexible fair use exception as has been recommended by the Australian Law Reform Commission. These reforms are essential if Australia is to have a vibrant, innovative digital economy and are, unlike the proposals included in this Discussion Paper, in line with the deregulation agenda of the current government.

Submissions from Organisations

You can view the submissions received by the Attorney-General’s Department from organisations and academics here. You may be particularly interested in these submissions (all PDFs):

Submissions from Individuals

The Attorney-General’s Department has arbitrarily decided only to publish submissions received from organisations and from academics, and not those from other individuals. Below are submissions from individuals received by EFA, that have not been published by the Department (all PDF):

If you have a submission you’d like us to publish, please email it to memberadmin[AT]efa.org.au