Brandis proposes website blocking and piracy crackdown

A leaked discussion paper from the Australian Attorney-General's Department reveals proposals to implement new legislation to undo the High Court's judgement in the 2012 iiNet copyright infringement case against Hollywood film studios, and force ISPs to block websites containing copyright infringing material.
Written by Josh Taylor, Contributor

A leaked discussion paper from both Attorney-General George Brandis and Communications Minister Malcolm Turnbull has floated the possibility of websites being blocked, and measures to compel ISPs to take steps to prevent their customers infringing on copyright online.

Five months after first flagging a crackdown was on its way, Brandis appears to be pushing ahead with plans to crack down on Australians using programs such as BitTorrent to obtain copyright-infringing content such as TV shows, music, and films.

The discussion paper, leaked to Crikey, had been expected to be released this month, following Brandis meeting with representatives in the US and UK governments on their respective copyright infringement deterrence schemes.

It outlines a number of potential legislative measures the government can implement to deter what the paper said is a "long standing issue" with Australians having "high illegal download rates".

The government states in the document that it believes even if an ISP doesn't have a direct power to prevent its users from infringing on copyright, there are "reasonable steps" it can take to deter infringement.

In a move to undo the 2012 High Court judgment that iiNet did not authorise its users' copyright infringement, the paper proposes amending the Copyright Act to extend authorisation of copyright infringement and the "power to prevent" infringement would just be one factor the courts would consider in determining whether an ISP was liable for infringement.

Determining what constitutes a "reasonable step" to deter copyright infringement is open to debate, and the paper states that the government is looking to the industry to determine steps that do not disadvantage the ISPs, or burden them with "unreasonable costs". 

Hollywood studios would also be able to get court injunctions to force ISPs to censor websites found to contain copyright infringing material, the paper proposes. The paper states the block would have to apply to all ISPs at the wholesale level, to ensure it is blocked in total, and customers couldn't just switch between ISPs.

Despite the strong proposals, the government admits in the paper that it struggles to quantify the volume and the impact of online copyright infringement in Australia, and has sought feedback on how the impact could be properly measured.

The paper hasn't officially been released by the government, however, it appears a quick turnaround on the discussion paper is expected, with submissions open until August 25th. 

ZDNet first reported in June that the Communications Department and the Attorney-General's Department had been collaborating on a joint proposal, and although the Communications Department had been arguing for the government to force content owners to make their products available quicker and more affordable, that part of the proposal appears to have been neglected in the leaked discussion paper. 

The option for graduated response to customers found to be infringing multiple times is not directly mentioned, but the discussion paper states that the government is not looking for a scheme that imposes sanctions without due process, or one that leads to the disruption of an internet connection.

Turnbull's involvement in the discussion paper that proposes undoing the 2012 High Court case comes despite his stating at the time that he was in favour of the decision. 

"I think the High Court came to the right decision and I really welcome it," he said at the time.

"It is very, very, very difficult if not impossible for someone that is just selling connectivity, just providing bandwidth to then be monitoring what people are doing."

He said at the time that copyright owners needed to recognise that TV shows put to air will be made available globally at once.

"So the owners of that copyright have got to be in a position where it can be released simultaneously theatrically, or in the case of something like that on Pay TV everywhere. But also, it should be for sale through the iTunes store or various other platforms at the same time," he said.

"And if they can download, they will. Now we’re just kidding ourselves — all they are doing is throwing money away by not making it available instantly."

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