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Rights holders want access to site blocking to be more affordable

The Australian Copyright Council has said that the Federal Circuit Court, rather than the Federal Court, should be able to force ISPs to block websites, because the cost of cases would be lower for rights holders.
Written by Josh Taylor, Contributor on

Rights holders should be able to take the more affordable path of getting ISPs to block websites through the Federal Circuit Court, rather than the Federal Court, the Australian Copyright Council has argued.

The council's executive director Fiona Phillips made the suggestion in one of the first submissions published from the parliamentary inquiry into the legislation. The Bill as it stands would allow rights holders to get a court order to block websites hosted overseas that are predominantly for the purpose of copyright infringement.

This would mean that torrent sites such as The Pirate Bay would be blocked under the legislation.

The Australian Copyright Council argued that only allowing the Federal Court to hear cases, which results in thousands of dollars in application fees, would deter many rights holders from going to court to get sites blocked.

"We are concerned that limiting the jurisdiction to the Federal Court of Australia may prejudice the ability of individual creators to access this remedy, and may otherwise affect the cost effectiveness of the scheme," Phillips said.

Given that sites have to be for the "primary purpose" of online copyright infringement, the council said this could be a "threshold so high as to make the regime practically unworkable".

This view was shared by Village Roadshow co-CEO Graham Burke, who said that piracy websites are "run by criminal gangs" that rely on the advertising on their sites.

"They are leeches living off stolen product. Additionally, pirate sites are a sleazy neighbourhood which our children go to, and they are selling hard-core pornography and scams such as party pills and steroids," he said.

Burke said cinemas in local towns would shut down if piracy isn't stopped.

"If the product is stolen, there will be no viability, and not only will there be massive job losses but arguably the soul of communities will go dark."

Village is also reportedly in a dispute, blocking the opening of an independent cinema in Geelong West.

The Communications Alliance, representing most of the Australian ISP industry, said that the legislation needs to define how sites should be blocked, either at the DNS level, the URL, or the IP address. The ISPs also want checks to be undertaken before sites are blocked, to ensure that legitimate sites aren't blocked inadvertently.

There should also be a landing page for the sites blocked to explain why they have been blocked, the Comms Alliance said.

ISPs should be offered indemnity from being sued by the site owners, and above all else should have their costs covered by rights holders, the Comms Alliance stated.

But Burke compared ISPs' business model to a factory, and suggested that ISPs could bear the cost of implementing not only the site-blocking legislation, but also the copyright code.

"Village considers that ISPs established a great business, but, like a factory spilling effluent into a river, the unintended consequence of their business is piracy, with its damning effects on our people, our culture, and the economy," he said.

The site blocking was opposed by the Electronic Frontier Foundation (EFF), which said in its submission that filtering content "runs the risk of being over-extensive, or under-extensive (frequently both at once)".

The EFF warned that because the legislation defines websites to be blocked that "facilitate the infringement of copyright", this may lead to operators of virtual private network (VPN) services such as Unblock-Us or Getflix, which provide ways around geoblocks on services like Hulu, Netflix, and HBO Now, being blocked.

"VPN services themselves are typically general-purpose internet services that can be used for many other lawful purposes, and it seems disproportionate to allow these lawful services to be blocked merely on account of the way that they are marketed," the EFF stated.

The Australian Communications Consumer Action Network (ACCAN) said that ambiguity over the legality of VPN services should be addressed in the legislation.

"Many Australian consumers are already using virtual private networks to access content that is geoblocked in Australia, but there is much ambiguity around the legality of these," ACCAN CEO Teresa Corbin said. "The Bill is an opportunity to clarify the status of VPNs so that these services are not themselves subject to blocking, limiting consumer access to paid overseas content."

The Human Rights Commission's Tim Wilson stated that he believes stopping copyright infringement is advancing human rights.

"Property rights are human rights."

However, he added that the government should introduce a "fair use" exception in the Copyright Act to ensure content that would come under a fair use exception in countries other than Australia would not be blocked under Australian copyright law.

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