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Australian Government to address online copyright infringement

Hogan Lovells TMT

22 December 2014
By: Carolyn Dalton, Executive Director of Policy Australia Pty Ltd

The Australian government has recently announced new initiatives to address concerns about online copyright infringement.  A ‘frequently asked questions’ (FAQ) document about the reforms was also released.  There were two key planks to the announcement:

  1. A call to industry to develop a new industry code within 120 days, or face new binding regulatory arrangements to address online piracy; and
  2. Amendments to the Copyright Act 1968 (Copyright Act) will be made to enable rights holders to apply for a court order requiring ISPs to block access to websites operated outside of Australia which provide access to infringing content (usually referred to as ‘site blocking’).

The new measures will be reviewed after 18 months to assess their operation and effect.

What will the industry code look like?

The code will be registered as an industry code under Part 6 of the Telecommunications Act 1997.  Compliance with the code will be one of the issues to be assessed by a Court in determining whether an ISP should be held liable for ‘authorising’ any infringements committed by customers under ss 36 or 101 of the Copyright Act.

At this stage, it is unclear exactly what will be included in a new industry code.  However, the Government has set out its expectations in a letter to industry, including its policy objectives for the code.  The Government has also stated it expects the code to include a process to notify customers when a copyright breach has occurred and provide information on how they can gain access to legitimate content.

What is clear is that the Government expects the internet industry, rights holders and consumers to work together to develop the code.  This is perhaps in response to criticisms of previous industry negotiations on these issues, when consumers were not perceived to have been given adequate representation during code development discussions.

Industry has until 8 April 2015 to finalise a voluntary industry code or face the imposition of a binding code.

How will the site blocking measures work in practice?

The legislation to implement the new site blocking measures has not yet been released.  As such, the precise scope of the measures is not yet known.  We do know that site blocking will only apply to overseas websites, as rights holders are not prevented from taking direct infringement action against websites operated within Australia.  In considering whether to make a blocking injunction, a court would be required to have regard to the rights of any person likely to be affected by the grant of an injunction, and court rules would operate to allow the court to make any directions it considered appropriate in the circumstances.

In a Discussion Paper foreshadowing the reforms released in July, the site blocking proposal was limited to sites where the “dominant purpose” of the website was to infringe copyright.  Further, it was stated that rights holders would be required to meet any reasonable costs associated with an ISP giving an effect to an order and to indemnify the ISP against any damages claimed by a third party.

In contrast, the recent Government announcement refers to site blocking of a website “which provides access to infringing content,” and makes no mention of ISP costs or indemnities.  It is unclear whether this represents a shift in policy or whether the legislation to be introduced will more closely reflect the July proposal.

Geoblocking and use of VPNs

Although no reforms have been announced on this issue, the FAQ document provides some clarification of the Government’s views about the thorny issue of whether the use of a virtual private network (VPN) to circumvent geocoding technologies amounts to a copyright infringement.  While many copyright lawyers in Australia believe the issue is not without doubt, the FAQ contains the following question and response:

Q: Many Australians use a VPN to access Netflix in the US. Is it illegal for me to use a VPN to access Netflix?

○     The Copyright Act does not make it illegal to use a VPN to access overseas content.

○     While content providers often have in place international commercial arrangements to protect copyright in different countries or regions, which can result in ‘geoblocking’, circumventing this is not illegal under the Copyright Act.

A wider reform agenda?

The report announcements come hot on the heels of a major review of copyright exceptions by the Australian Law Reform Commission into Copyright and the Digital Economy.  The central recommendation of this review was that Australia introduce a fair use style exception into the Copyright Act.

The Government is yet to formally respond to the ALRC’s recommendations.  However, Attorney-General George Brandis has indicated his views that the Copyright Act is in need of reform, being “overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic.”

2015 is shaping up to be an interesting year for copyright in Australia.


Hogan Lovells TMT

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