Effects Of New Australian Blocking Legislation Remain Highly Controversial 26/06/2015 by Monika Ermert for Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Much will depend on Australian federal judges after a website blocking bill targeting copyright violations was passed by both houses of the Australian legislature this week. It may not be a bad thing that the judges have considerable discretion to weigh the impact of the blocking before granting the injunctions against ISPs, says Australian IP law expert Kimberlee Weatherall. Political opponents still are highly concerned. The Australian Senate on 22 June passed the Copyright Amendment (Online Infringement) Bill 2015 against the votes of the Green Party and a few senators from other parties. The legislation once given “royal assent”- basically a signature by the Australian Governor-General – will allow rights owners to get federal court injunctions forcing internet access providers to block foreign sites allegedly violating copyright or assisting in that. Proponents described the bill as delivering a “modest filter” and a “key reform to reduce online copyright infringement” at the same time. Opposing senators called it “lazy and dangerous” or just “bad legislation”. Upon application by Australian copyright owners, the Federal Court of Australia may grant the injunctions against internet service providers as third parties to block access for their customers to internet sites infringing or facilitating the infringement of rights owners’ copyrighted content. The measure only targets sites outside of Australia; the alleged rights violations must not have taken place in Australia. According to the paragraph 1 (c) that will be added to the new section 115 A of the Australian Copyright Act from 1968, the court has to be satisfied that “the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).” The main targets are peer-to-peer file sharing and torrent search sites like the Pirate Bay or KickAssTorrents. Attempts have been made to block such sites in over 20 countries worldwide. Yet there has also been, at least in one instance in the Netherlands, a court ruling lifting the filtering injunction due to its “inefficiency”. Effectiveness Questioned Liberal Senator David Leyonhjelm before this week’s vote gave the rationale for his opposition, saying that “the bill is vaguely drafted and unlikely to achieve its aims.” Blocking is a drastic remedy and “has the potential to be used against a range of legitimate sites and has inadequate protections for non-party interests,” he said. Leyonhjelm also criticised the emphasis on enforcement without “addressing the other overdue reforms of the Copyright Act.” Green Party member Scott Ludlum called the bill “lazy”, as “since November 2013 the Australian government has had in its hands the Australian Law Reform Commission’s report from quite a broad ranging inquiry into how to update our antiquated copyright regime for the 21st century.” Third party filtering has been brought forward, said Ludlum, “because it gives it the impression of having done something and it directly answers to its cashed-up donors and lobbyists.” Need for More Protection The oppositional Labour Party, on the other hand, supported the bill as what Senator Jacinta Collins called a “modest contribution to the suite of measures required to deal with Australia’s online copyright piracy problem.” The legislation was also enthusiastically welcomed by Australian media businesses. Foxtel Chief Executive Richard Freudenstein in a press release after the passage said, “We are pleased that the Government and Opposition have taken strong action to combat online piracy. They recognise that, not only is piracy theft and therefore morally wrong, it is harmful to Australia’s creative communities and to businesses that employ hundreds of thousands of Australians.” He added: “We look forward to seeing the legislation put into effect both to demonstrate that these fears are unfounded and to begin reducing the levels of illegal downloading in Australia.” The bill was a part of a series of measures being put in place by government, he added. Another measure under discussion is an “Online Copyright Infringement Code released”. The Code developed by the Communications Alliance is a kind of three-strikes-concept, described as “educational” and a “deterrent” mechanism that could result in legal complaints users after they received 3 notices over a period of 12 months. Bowing to Big Rights Owners? Pirate Party spokesperson Simon Frew, in response to Intellectual Property Watch questions, wrote: “The major parties voted together to pass the legislation in its current form. In the last financial year they received over $500,000 between them in donations from Village Roadshow, so we believe they are acting in the interests of their donors.” Village Roadshow reportedly was one of the few stakeholders to be granted a meeting during the preparation of the legislation by the attorney general in charge. While meeting requests from consumer groups had not been honoured, Village Roadshow, according to a freedom of information investigation by Tech Magazine ZDNet got several invitations. The company had pushed for the legislation arguing that piracy if not addressed would shut down Australian feature film production completely. The company had unsuccessfully filed a complaint against iiNet in an attempt to hold the internet access provider directly liable for alleged copyright violations by its customers. Concerns by Consumer Groups ISP groups like the Australian Communications Alliance gave “guarded support” to the legislation, while reiterating concerns over cost issues and indemnification for the services providers in case of third party complaints against the blocking orders. Consumer Groups like Choice remained concerned about the issue of overblocking, pointing to the example of Australia’s financial regulator which in 2013 by accident took down 250,000 legitimate sites in the attempt to block just one. But also mission creep for the filtering policy was a concern, expressed for example in the Senate. Lack of clarity persists according to several groups opposed to the bill with regard to the use of virtual private networks (VPNs), which hide the location of a user and therefore also can be a tool to evade the blocking. “The legislation is worded vaguely, so the extent of what can be blocked will have to be tested in the courts,” Frew warned. While it would be hard to argue that the “primary purpose” of VPNs is to facilitate copyright infringement, he said, a problem is that the only parties able to defend against a blocking order are ISPs and the targets of the order themselves. Smaller services somewhere in the world might not be able to mount a legal defence at all. According to Frew: “If ISPs don’t challenge the orders, and they have little motivation to, blocking may occur without opposition.” Could the New Legislation be Abused? Weatherall, an associate professor at the University of Sydney Law School, expects that courts will honour the clear exception made for VPNs in the explanatory memorandum (EM) attached to the bill. “But it is true that an EM is extrinsic materials to aid interpretation and not binding as such,” she acknowledged. With regard to clarity in the text of the bill on what kind of technical means providers have to use for the blocking and the costs attached, the IP law expert explained that ISPs would be expected to use ‘all reasonable means’. “The process is closely modelled on the UK process and I’d expect our judges to pay a fair bit of attention to how the power has been used in the UK,” she said. In the UK, the orders had been “framed along the lines of ‘it will be sufficient if [x] technologies are used’ so that ISPs aren’t held liable if there are holes in the system.” On payment for the technical handling of the blocking, it is up to the court’s discretion. It would be interesting to see “whether the courts apply the usual rule that if you are seeking a remedy against a third party not themselves engaged in wrongdoing then you pay, or whether they follow the UK approach where each party more or less bears its own costs,” said Weatherall. “Is there room for abuse? I guess in any process there is,” she said on potential pitfalls. “But the process is under the control of a federal court judge; federal court judges are good jurists and should be able to spot and control abuse.” The discretion given to courts to consider many additional factors for their decisions including the public interest or the interests of “any persons or group of persons” could enable NGOs to use their “ability to tender evidence on this question (and absence of evidence from right holders on this question) as a basis for seeking leave to appear as amicus curiae,” she added. So while Weatherall did not especially like the bill and thought it had problems, she was “relieved that the power is in the hands of serious judges in a high level court and I hope I can trust them to keep a control over how the remedy is used.” Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Monika Ermert may be reached at email@example.com."Effects Of New Australian Blocking Legislation Remain Highly Controversial" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.