Piracy site-block laws to be expanded

The government's piracy site-block amendment expands injunctions to search engine providers, reduces the burden of proving that a site is hosted outside of Australia, and expands it to sites that not only have the 'primary purpose' to those that have the 'primary effect' of infringing copyright.
Written by Corinne Reichert, Contributor

The Australian government has introduced new legislation to Parliament to bolster its laws allowing content holders to gain Federal Court orders for ISPs to block foreign-hosted piracy websites, expanding it from carriage service providers to online search engine providers.

The Copyright Amendment (Online Infringement) Bill 2018 [PDF], introduced on Thursday, "strengthens the existing, successful website-blocking scheme introduced by the government in 2015 by allowing more pirate websites to be targeted and making it harder for pirates to circumvent blocking measures", according to the government.

Under s115A(2), rights holders can now gain injunctions requiring online search engine providers to "not provide search results that include domain names, URLs, and IP addresses that provide access to the online location and that are specified in the injunction" both before and after the injunction is made, meaning it would more easily cover mirror sites.

According to the explanatory memorandum [PDF], the Bill also expands the definition from "primary purpose" to also include websites that have the "primary effect of infringing or facilitating the infringement of copyright".

Under the Bill, the presumption would be that the online location is outside Australia unless proven otherwise, also reducing the evidentiary burden on copyright owners.

The minister is also able to declare certain online search engine providers or classes of these to be exempt from the scheme.

"The Copyright Amendment Bill will ensure a broader range of overseas websites and file-hosting services widely used for sharing music and movies are within the scope of the scheme, and provide a means for proxy and mirror pirate sites to be blocked quickly," the Department of Communications said on Thursday morning.

"The amendments will also further empower copyright owners to seek Federal Court orders requiring search results for infringing sites."

The Australian government had opened consultation on the piracy site-blocking laws in mid February, with the Department of Communications seeking feedback on the effectiveness and efficiency of the mechanism, whether the application process and injunctions are operating well, and whether any amendments are required.

The new Bill comes despite the existing law's successful track record in blocking hundreds of torrenting and streaming websites, and its recent expansion to smart TV boxes and sites providing subtitle files.

Earlier this week in the Federal Court of Australia, content owner Roadshow revealed that it is targeting four subtitle websites -- Addic7ed, opensubtitles.org, Subscene, and YIFY subtitles -- which do "nothing else except offer subtitles that infringe copyright".

The application to have the court order blocks against these websites is "no different" from the rest of the piracy site-block applications, counsel for Roadshow said, despite being a new type of site to be blocked with no audio or visual content.

Justice Nicholas is now evaluating whether the subtitle sites meet the requirements of being websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright under Section 115A under the Copyright Amendment (Online Infringement) Act, which passed both houses of Parliament in mid-2015.

As well as the four subtitle sites, the case -- being brought by Roadshow Films alongside the world's largest producers of Chinese media content, TVBO Productions and Television Broadcasts (TVB), and Madman Entertainment, which is the exclusive licensee of Japanese anime content -- is targeting 151 domains in total.

Another successful Federal Court case by Roadshow in April had resulted in Australia's internet service providers being ordered to block 16 online locations of alleged piracy websites due to their use by smart TV boxes, with TVB/TVBO winning a similar case last month.

In June, the Federal Court ordered Australia's internet service providers to block another swathe of allegedly illegal torrenting and streaming websites, after just one day after the one-hour hearing.

Previous site-blocking hearings saw content owners including Foxtel successfully seek blocks against Kickass Torrents, and more than 200 additional alleged piracy sites.

Under the initial ruling, rights holders are to pay a AU$50 fee per domain they want to block, with the websites to be blocked within 15 business days.

The new Bill also comes in spite of research from the Department of Communications in August showing that for the third year in a row, online copyright infringement rates have dropped off across TV series, movies, and music, with the finding that consumers are increasingly paying for digital content.

"This trend is probably driven by paid streaming services such as Netflix and Stan, which have been shown to experience dramatic popularity over the past few years and negates the need for consumers to source the content using other means," the department said.


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