Senate committee defends piracy site-block expansion

The piracy site-block expansion should be passed by Parliament, a Senate committee has recommended.
Written by Corinne Reichert, Contributor

A Senate committee has recommended that the piracy site-block amendments be passed as is, despite objections from global tech giants.

In a report published on Monday night, the Senate Environment and Communications Legislation Committee said that while it "appreciates" concerns raised, it is of the view that there are enough safeguards in the Copyright Amendment (Online Infringement) Bill 2018, which it called "measured and proportionate".

"The committee appreciates the concerns raised with respect to the scope of the amendments, particularly those regarding the proposals to introduce a 'primary effect' test, extend the operation of the injunctive regime to search engines, and allow the Federal Court to issue 'adaptive' injunctions," the report said.

"However, the committee is of the view that there appear to be adequate safeguards in the Bill to ensure that the measures would not result in unintended and adverse consequences."

The committee also said legitimate online locations are unlikely to be captured by the legislation, and threw its weight behind the government's proposal to extend the site-block laws to search engines.

"A number of submitters asserted that it is unnecessary to extend the injunctive regime to online search engine providers. However, in light of the significant role that these providers may play in both the infringement and enforcement of copyright, the committee is of the view that the measure is appropriate," the report said.

The amendments allowing for rights holders to gain adaptive injunctions against mirror sites are also "appropriately circumscribed", according to the committee.

"The court would maintain ultimate oversight over these injunctions, as well as the evidence that there must a sufficient nexus between the online location covered by the original injunction and the location to which the order is expanded," it explained.

"The committee considers that, on balance, the benefits of the Bill outweigh any potential negative impacts that could arise from the proposed amendments. The committee therefore recommends that the Bill should be passed."

The committee also recommended that the Bill be reviewed two years after being passed.

In additional comments, however, the Australian Greens party argued that "site blocking is not the most effective means of stopping piracy".

"Site blocking does not stop people from accessing content. Rather, copyright is better addressed by making the content available: Conveniently, affordably, and in a timely way. We have seen this to great effect with the popularity of Netflix in Australia and the impact on piracy," the Greens said.

"We acknowledge that whilst the Bill is intended to address gaps within the current scheme, unintended consequences of extending website-blocking practices are a concern that we hold, and would like to further explore to ensure that free speech and public discourse are not unduly affected."

Earlier this week, a group including Facebook and Twitter had told the committee that the proposed piracy site-block amendments "expand the scheme far beyond what is reasonable".

"Our members spend thousands of hours and millions of dollars in developing technology-based solutions to fighting online infringement, from deprioritising search results to hash-based solutions, to developing better ways of processing takedown notices," the Digital Industry Group Inc (DIGI) -- whose members also include Google, Instagram, Yahoo, YouTube, Redbubble, and Oath -- said in its submission [PDF].

According to DIGI, the five major issues with the Bill are that there is no need for the amendments, as a site-blocking application has never been rejected by the court; that it makes the scheme so broad that it risks legitimate websites being blocked; that the expansion to online search engines is "unprecedented and unnecessary"; that the safe harbour scheme must be expanded if the site-blocking scheme is expanded; and that it is "highly problematic" that Federal Court oversight is being removed.

DIGI suggested either removing the words "primary effect" or changing "copyright infringement" to "flagrant copyright piracy", and emphasised the importance of expanding the safe harbour scheme.

The DIGI submission followed an individual submission published last week by Google, saying it strongly disagrees with the Bill, as it would remove Federal Court control over what websites are blocked and hand it instead to commercial entities.

"Google is concerned the Bill is being rushed forward despite no substantive evidence that the current legislation is deficient," Google said.

"Google's view is that there is presently no reasonable policy basis for these amendments."

The search engine giant pointed out that the government's own research has shown that piracy is decreasing every year, and that no other nation has extended site-blocking schemes to search engines.

Village Roadshow CEO Graham Burke said Google's claims of fighting piracy are a "sham".

"Their [sic] sole interest is using a treasure trove of stolen movies as part of attracting people to a business model that is strengthened by theft," Burke said about Google in the Village Roadshow submission.

"Google auto complete and search are used to steal movies. This is no different from stealing a loaf of bread from a 7-11 store."

The Australian government had introduced the new legislation in October, proposing to expand piracy site-block laws from carriage service providers to online search engine providers.

The Bill would also allow faster blocks of mirror sites, reduce the burden of proving that a site is hosted outside of Australia, and expand the legislation to sites that not only have the "primary purpose", but also to those that have the "primary effect" of infringing copyright.

According to Foxtel, the existing legislation has so far seen around 88 sites and 475 domains blocked, but said it "can be difficult" to prove that some online locations have the primary purpose of infringing locations, such as file-hosting services and cyberlockers.

The new Bill comes despite the successful track record of the existing Copyright Amendment (Online Infringement) Act -- which passed both houses of Parliament in mid-2015 -- in blocking hundreds of torrenting and streaming websites in an increasingly speedy way, as well as its recent expansion to smart TV boxes and sites providing subtitle files.

Under the initial Federal Court 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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