Since our report last week on Australia’s Internet censorship bill, the bill did indeed pass the Senate yesterday, and will become the Copyright Amendment (Online Infringement) Act 2015. The new law provides an accelerated process for rightsholders to obtain court orders for ISPs to block sites that have the primary purpose of infringing copyright, or “facilitating” its infringement—a term that the law does not define.
During debate the government rejected a series of safeguards that the Australian Greens attempted to introduce to mitigate the risk of abuse of the new law. Besides tightening the definitions, these amendments would have provided affected parties with a right of appeal, and explicitly protected providers of Virtual Private Networks (VPNs), who now may face claims that their services are designed to facilitate copyright infringement.
What were some of the arguments in favor of the censorship law that came up in debate? They range from less than compelling, to flat-out wrong. Paul Fletcher, Parliamentary Secretary to the Minister for Communications, stated that “provisions of the kind contained in the bill have been used in other jurisdictions, including the UK, Ireland and Singapore, and in these jurisdictions an injunction is often ordered without any opposition from the internet service provider concerned.”
That’s not quite true—for example, there has not been a single concluded case yet in Singapore (a country that also bans unlicensed public assemblies, and chewing gum). We can also add a couple of other entries to Fletcher’s list—Russia also recently introduced copyright censorship laws, shortly after its laws banning LGBT “propaganda”, and Turkey has had a similar provision in its copyright law since 2004, which it exercises regularly, besides also blocking social media sites such as Twitter and Facebook. Australia can now be proud to join that illustrious club.
Giving a hint of the future direction of Web blocking in Australia, Government MP Nola Marino, made the following ominous remarks in the course of a rightsholder-inspired “won’t somebody think of the children” spiel:
There are 3.4 billion people plus in the world using the Internet. At least 1.3 billion people use Facebook. There are tens of thousands of websites, many with absolutely no encryption and no protection of any sort. That is the environment people are in. The 3.4 billion people using the Internet often have no idea what they are exposing themselves or their systems to when they engage in this space.
Imagine that—tens of thousands of websites! This makes it all the more impressive that the Australian Securities and Investments Commission (ASIC) accidentally blocked up to a quarter of a million of them at once when applying a previous web-blocking law.
Even more worrying, David Coleman MP foreshadowed the movement of web blocking outside of the legal regime established by the new censorship law, and into the darkness of informal backroom arrangements:
I concur with others in this debate in saying that I think the way that this will play out is that in the early days you will probably see a number of court actions initiated. You will see some court orders issued for take-down notices for infringing material. But then what will happen, logically, over time, is that ISPs and content providers will work together in a sensible way. No doubt they will circumvent much of that court formality and work together in a constructive fashion to take down offending material, and that is as it should be.
On the other hand, opposition MP Ed Husic (who spoke against the bill, notwithstanding voting for it anyway) pointed out the obvious:
You have not once heard a rights holder say that if they get major gains in reducing piracy this will flow through to better prices and better accessible content. I dare them to actually say it. They will not do it. They will not respond to consumers. They will spend their time lobbying for legal responses to market failure, and the legislation reflects a government attitude and an attitude of extreme rights holder attitudes that will not respect that consumers, when they are given choice with content, will pay for content and will pay for better content.
Amongst the minority of MPs who not only spoke against the law, but also voted against it, was David Leyonhjelm who labelled it “bad law” and said:
Website blocking is a drastic remedy and a blunt tool. The bill has the potential to be used against a range of legitimate sites and has inadequate protections for non-party interests. Meanwhile, placing increased emphasis on enforcement without addressing the other overdue reforms of the Copyright Act risks a ridiculously unbalanced copyright regime.
Similar criticisms were made by Scott Ludlam MP, who did at least manage to successfully introduce one amendment requiring the government to finally respond to the Australian Law Reform Committee’s (ALRC) report on Copyright and the Digital Economy, which had recommended that Australia adopt a fair use exception in its copyright law. The government has repeatedly brushed off this recommendation while pursing its own copyright enforcement agenda, but will now at least be required to provide the ALRC with the courtesy of a formal response by September 17—almost two years after the report was issued.
After bombarding Australians with one heavy-handed enforcement measure after another over the past twelve months—including mandatory data retention and a co-regulatory graduated response code (which is pending registration), the very least that Australian users deserve in return is for fair use to be given a fair hearing.
