Piracy site-blocking laws under review

Online copyright infringement has reduced since passing legislation to block piracy websites, the government has said while seeking feedback on the process.
Written by Corinne Reichert, Contributor

The Australian government has opened consultation on its piracy site-blocking legislation three years after passing it, noting that more applications are expected to be heard in the Australian Federal Court "shortly".

The Department of Communications is seeking feedback until March 16 on the effectiveness and efficiency of the mechanism; whether the application process and injunctions are operating well; and whether any amendments are required.

"Case law and survey data suggests the Online Infringement Amendment has enabled copyright owners to work with CSPs to reduce large-scale online copyright infringement," the Review of Copyright Online Infringement Amendment [PDF] says.

"So far, it appears that copyright owners and CSPs find the current arrangement acceptable, clear, and effective ... the department will monitor applications to see whether the current arrangements are refined as more applications are made."

The review also points towards the precedents that have since been set: Using a landing page to notify users of a website block; and the costs for compliance.

"Either a copyright owner or a CSP can establish a landing page. If a CSP wishes to avoid the cost of its own landing page, it can redirect customers to one that the copyright owner would provide," the review says.

"Cases to date have required copyright owners to pay all or a significant proportion of compliance costs. They have also calculated costs proportionate to the number of domain names."

According to the Department of Communications, there has been a "correlating" reduction in copyright infringement since the legislation was passed -- although this also coincides with the launch of streaming services in Australia, as noted by a previous report by the department.

"The department is aware that other factors -- such as the increasing availability of television, music, and film streaming services and of subscription gaming services -- may also contribute to falling levels of copyright infringement," the review adds.

"Consumption of digital content by streaming is rising across all categories, particularly in television and film."

Website blocking was legislated under the Copyright Amendment (Online Infringement) Act, which passed both houses of Parliament in mid-2015 and allows rights holders to obtain a court order to block websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright under Section 115A.

The laws were enthusiastically taken up by rights holders, which have since succeeded in getting the Federal Court of Australia to block hundreds of piracy websites.

One case currently before the court saw Justice Nicholas earlier this month delay Roadshow Films' application to have an alleged piracy-facilitating streaming app and associated websites blocked by Australia's internet service providers, moving it from March to mid-April to be heard alongside a similar hearing by two Hong Kong-based media broadcasters.

According to Justice Nicholas, the separate applications by Roadshow and by TVBO Productions and Television Broadcasts (TVB), the world's largest producers of Chinese media content, deal with different enough technology to previous site-block hearings to warrant additional time and evidence to deal with them.

"I will need to be satisfied by evidence so that I have a good understanding of how it works, I know what the precise relationship is between this box, the apps, and the site from which [content is] downloaded," Nicholas J warned counsel for Roadshow and TVBO/TVB.

"I don't want the evidence in any respect to be scant on those issues; otherwise, you might find the orders won't be made."

Counsel representing Roadshow and TVB/TVBO had previously argued that the case is similar to previous site-block orders in that the box forms the role of the PC, and the apps on the box form the role of the browser -- except that these "browsers" cannot access any other content than alleged piracy websites.

The content owners are seeking to have the domain names that are allegedly facilitating copyright infringement associated with the apps blocked. Such apps are proprietary to the smart TV box in question, counsel said.

ISPs last year also established the procedure of not being present during piracy site-blocking hearings.

Previous site-blocking hearings have seen content owners including Roadshow Films -- which leads a group of film studios including Disney, Universal, Warner Bros, 20th Century Fox, and Paramount -- and Foxtel successfully seek blocks against Kickass Torrents, the Pirate Bay, 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.

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