The passage of legislation allowing rights holders to gain Australian Federal Court injunctions to force internet service providers (ISPs) to block overseas-hosted piracy websites is assured, after Coalition and Labor senators on the Senate legal and constitutional affairs committee endorsed the Bill with four modifications.
The committee said in its report that the Bill sets a high enough threshold to ensure that site blocking is narrowly targeted, and that the Bill is possibly too stringent by requiring a court to consider all listed matters, including the flagrancy of any infringement, whether the site owner shows a disregard for copyright, whether a site has been blocked from other jurisdictions, whether any blocking is in the public interest, or any other relevant matter.
It was recommended by the committee that the wording of the Bill be changed from "is to take the following matters into account" to the weaker "may take the following matters into account".
While the committee said it had been "persuaded" of the need for landing pages to advise that a site has been blocked by court order, it did not strictly recommend them. The report said rights holders should be made to include independent technical advice showing any possible impact on third parties when applying to have a site blocked.
"The committee is of the view that where the infringement of copyright is in fact the 'primary purpose' of an online location, this purpose will be unambiguously apparent, regardless of whatever other activities or links (such as advertising) may be associated with the online location," it said. "The committee acknowledges that the 'primary purpose' threshold is high, but notes its confidence that rights holders' applications, and the court's interpretation of the details of those applications, will effectively avoid inadvertent blocking of online locations which have a primary purpose that is not online infringement."
Usage of virtual private networks (VPNs) will not be affected under the site-blocking Bill, it said, with VPN usage unlikely to meet the test to ensure that a technology's primary purpose is piracy.
"The committee would, however, be reassured if the government were to clarify the status of VPNs in the Explanatory Memorandum to the Bill," it said.
Two years after the Bill becomes law, the committee recommended that the Copyright Amendment (Online Infringement) Bill 2015 be reviewed, as the one sitting of the committee did not allow for it to receive enough evidence on some issues.
"A formal cost-benefit analysis was not commissioned," the committee said. "As such, the committee received no information that provided a comparison between the expected benefits to rights holders and the potential costs to other parties."
It was the view of the committee that courts determine costs on a case-by-case basis. Citing the Dallas Buyers Club court case, the committee said there is "compelling evidence" for indemnifying an ISP for the cost of complying with court orders.
In its dissenting report, the Australian Greens said the Bill will give the Federal Court a new censorship power.
"The Copyright Amendment (Online Infringement) Bill 2015 is the latest in a long line of misguided attempts by the government to monitor, control, and censor the internet," Senator Scott Ludlam wrote for the Greens. "There is a substantial weight of evidence showing that it will be relatively easy to evade the Bill's provisions, that it does not contain appropriate safeguards, and that it may result in legitimate online sources being blocked.
"The Australian Greens do not believe the committee has adequately taken the views of stakeholders other than copyright holders into account in its report."
Ludlam said the Bill does not address the issue at the heart of the piracy debate in Australia: The lack of access to content in a timely fashion.
"The extremely rapid uptake of the Netflix internet television services after its March 2015 launch is one strong indication that Australians will adopt commercial services where they are available, instead of infringing copyright."
For its part, Labor said the government should proceed with wider reform of copyright law.
"It is certainly important to take action against piracy, but there is a clear need for much more sweeping reform to protect the interests of artists, industry, and consumers alike," Labor Senators Collins and Bilyk said.
"Labor will support this Bill subject to the government accepting the committee's recommendations."
The Bill was introduced to the Australian parliament in March, and is expected to cost ISPs over AU$130,000 each year to implement.