The Copyright Amendment (Online Infringement) Bill 2015, introduced into parliament by Communications Minister Malcolm Turnbull in March 2015 to curb online piracy of film and TV shows, passed with the Coalition and Labor's support 37-13. The law amends the Copyright Act and allows content owners to apply to the Federal Court for an injunction blocking an "online location outside Australia" which has a "primary purpose" of "facilitating" copyright infringement.
Unlike the test in Australian law for "authorizing" copyright infringement which is a known quantity, with a long history before our courts, this new remedy against online sites for "facilitating" infringement has broad and indeterminate scope. It is possible that these "facilitators" of infringement would not be held to infringe copyright under current Australian law. An example of such a "facilitator" may be a provider of a VPN service allowing Australians direct internet access to foreign countries without visibility to ISPs. VPNs have multiple lawful uses connected with secure communication – aside from their widespread use to access Netflix, Hulu or other overseas content sources.
A real question to be played out over time is if websites for businesses with lawful activities in their home jurisdiction or even a substantial non-infringing user base in Australia will be caught up in this website blocking scheme. For example – cloud based file storage businesses that serve business and consumer needs could be caught up in one of these injunctions – blocking lawful or business users from accessing their records.This was a problem with the shut down of cloud storage provider "megaupload" in 2012 when many lawful users and businesses lost access to their records.
Further – if ISPs or "carriage service providers" contest an injunction or provide submissions to the court they are exposed to the content owners' legal costs, so there is a real chance many of the hearings under the new legislation will be conducted by content owners alone without the benefit of robust argument.
The other problem with this law as a solution to online piracy is that infringers will always move faster than regulators – legitimate businesses won't be able to continually move IP address and otherwise evade blocking measures whereas the pirates such as Pirate Bay have a long history of evading blocking efforts like this in Europe. It is a law with a large potential impact on online activity in Australia which may not have much impact where it is intended.
The real solutions for curbing the Australian appetite for unlicensed content is probably in the commercial distribution models. The content owners have taken a very long time toextend models like Netflix and Spotify to Australia, even when those models have been widely used in other jurisdictions. These lawful content distribution models make content available in an easy, timely and affordable way which must act to diminish piracy.
Australia's new law will be a bandaid solution that won't solve the underlying piracy problem and it could cause some harm if it is misused.
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