Speech on Copyright Amendment (Online Infringement) Bill 2015

Australian Parliament House.

Mr DREYFUS (IsaacsDeputy Manager of Opposition Business) (18:30):  I rise to speak to the Copyright Amendment (Online Infringement) Bill 2015. Labor will support this bill after closely considering it in the Senate Legal and Constitutional Affairs Committee.

The bill makes a modest but, I believe, worthwhile contribution to the suite of measures required to deal with Australia's copyright piracy problem. Copyright law is vital to fostering creativity and innovation. The national arts policy that Labor introduced while in government—Creative Australia—noted this. It expressly acknowledged:

… the role that Australian copyright plays as the primary legal framework supporting the creative economy.

Copyright law protects the rights of all those who produce original artistic or intellectual work. The very livelihoods of artists, authors, musicians, composers, writers and performers depend upon it. I am the son of a composer; I know very well the vital role of copyright laws in supporting the work of creative people.

Given how central copyright protections are to supporting creative activity of all kinds, we should be deeply concerned about the current level of online piracy. We should not mince words about this: Australia has a very serious problem with piracy. Available figures indicate that it is one of the worst in the developed world. A lot of the public debate about this topic is focused on popular foreign content, like Game of Thrones. But when Australian audiences pirate creative work it is Australian creative industries which suffer disproportionately. It is the livelihood of Australians employed in those industries which is threatened. Market research indicates that movie piracy alone costs the Australian economy $1.37 billion worth of sales, $193 million in tax revenue and 6,100 FTE jobs each year. If the arts are to thrive in Australia—if we are to be a Creative Nation—then we must have appropriate copyright protections and the measures necessary to enforce them. The current level of online piracy clearly necessitates government action.

This bill is a modest but definitely worthwhile contribution to that work. The bill implements a site-blocking process under which rights holders can seek a Federal Court injunction requiring ISPs to block overseas websites that have the primary purpose of infringing copyright or facilitating the infringement of copyright. I know that some rights holders felt that this standard—the primary purpose test—was too high. The Senate Legal and Constitutional Affairs Committee looked closely at this question and decided that the test is appropriate, and I endorse that conclusion. However, to clarify matters, the committee recommended the insertion of a legislative note into the bill, a recommendation which the government has accepted. This note explains that the primary purpose test does not have the perverse outcome that a piracy website's primary purpose is held to be, for instance, making money, even though it does so by means of copyright infringement. I hope that this amendment reassures rights holders that though the threshold test is certainly rigorous, we want this bill to be practical.

In deciding whether to make an order under this bill, the court will take account of a range of factors, including the flagrancy of the infringement or facilitation of infringement by a site, whether the site shows a disregard for copyright generally and whether the website contains a directory or index of ways to infringe copyright. On the other hand, the court will consider whether other remedies under the copyright law are available. Importantly, the court will consider the impact of a site-blocking order on any other person or class of persons, and whether to make such an order would be a proportionate response in the circumstances,

That test—the primary purpose test—and the range of factors the court is asked to consider are key. Those features of the bill make it clear that it is aimed at a very specific mischief; the power it confers is intended to be exercised very carefully and in limited circumstances. The bill is directed, essentially, at the worst of the worst. It is intended to give rights holders a remedy against a category of websites which deliberately and flagrantly flout copyright laws and operate as havens for pirate activity. It is galling that they turn a handsome profit in doing so.

A blocking mechanism is necessary because these websites are hosted overseas. Were they hosted within Australia, they would be able to be dealt with by the ordinary remedies of the copyright law. Nonetheless, ordering that access by Australian internet users to a given website be blocked is obviously a very serious step. It is appropriate that this kind of power be exercised not by executive government, but by a court. It is appropriate that in exercising that power the court takes account of the public interest, as the bill provides.

One difficulty, of course, with a site-blocking measure is that it necessarily has an impact on ISPs, even though they cannot reasonably be held responsible for the pirate activity of foreign websites accessed through their services. This bill recognises that difficulty. The bill makes clear that an ISP is not liable to pay any of the legal costs involved in applying for a site-blocking order unless they contest the application. Once this law is established and the courts have developed some expertise in making the relevant orders, I expect that most applications will be dealt with in an efficient, cooperative manner.

When the government proposed this legislation in its discussion paper on online piracy released in July last year, it indicated:

Rights holders would be required to meet any reasonable costs associated with an ISP giving effect to an order and to indemnify the ISP against any damages claimed by a third party.

The bill before the parliament, however, is silent on this point. The Senate Legal and Constitutional Affairs Committee has queried this.

 

In its report tabled 11 June, the committee recommended that the government provide a full explanation of how costs and liability incurred by ISPs in compliance with site blocking orders will be handled. I strongly endorse that recommendation and await the government's explanation.

 

I have explained the intent and effect of the bill. I also want to be very clear about what this bill is not targeted at and the type of websites its terms will not capture. This bill is not, as some have sought to claim, an internet filter of any kind. It is a judicial remedy for conduct in flagrant violation of the law. This remedy is available only where the quite strict requirements of the bill are met. Make no mistake: the type of websites this bill deals with, were they hosted in Australia rather than abroad, could be ordered to be taken down under existing copyright law.

 

This bill does not allow rights holders to seek injunctions against virtual private network providers—or VPNs. VPNs have a range of legitimate purposes and do not meet the threshold primary purpose test in this bill. As the Minister for Communications noted in his second reading speech, many Australians use VPNs to appear as though they were in another country in order to access legitimate content which is available in that country. As the minister explained, this bill does not address that kind of conduct. Use of a VPN to access overseas content may be in breach of certain contractual arrangements but it does not breach Australian copyright law. However, there remains substantial concern in the community about this issue and, as such, the Senate Legal and Constitutional Affairs Committee wisely suggested that the government provide reassurance about this matter in the explanatory memorandum to the bill. I know the government accepts this recommendation, and I look forward to the government attending to this suggestion.

 

As I have said, this bill is a modest and, I believe, common-sense measure. I expect that it will make a fair dent into online infringement in Australia and that it will disrupt the operation of websites which flout the law. But this bill, and other measures which seek to deter copyright infringement, can only ever be part of the answer. We must encourage the use of legitimate content. No legislative measure will deal with piracy more effectively than the provision to the Australian market of a broad range of content in a timely and affordable manner. This is ultimately a matter for business, and not for government or this parliament, to address.

 

I firmly believe that Australians are, by their nature, law-abiding people. What is more, they understand the value of creative labour and want to access legitimate content and support artists. Indeed, as I said earlier, many thousands of Australians apparently go to great technological lengths in order to pay for legitimate content overseas. I am pleased by the recent progress that has been made in this regard and I hope it continues. Devising better ways of delivering content to Australian consumers is a commercial and not a policy challenge. Business must adapt to the challenges of the new digital economy. But government does have a role in setting the policy and the legal framework. As I noted earlier, Labor's Creative Australia policy affirmed 'the role that Australian copyright plays as the primary legal framework supporting the creative economy'. This does not entitle us to rest on our laurels. Copyright law supports creativity and innovation in our culture, in our society and in our economy. If we allow our copyright law to become outdated, obsolete, we cannot expect to thrive in the new digital economy.

 

Australia's current copyright law was conceptualised and drafted before the first email was ever sent—when the modern internet was scarcely imaginable. It was enacted fully three decades before the invention of Google in an era when a visit to the library necessitated rifling through a card catalogue. The law is, needless to say, in need of a thorough overhaul. It was for this reason that Labor tasked the Australian Law Reform Commission with investigating how the copyright law could be updated for the needs of the digital age. The commission provided its report to the then newly-minted Attorney-General, Senator Brandis, in November 2013.

 

Early in February 2014, Senator Brandis undertook to pursue a root and branch reform of the copyright law in response to that report. The Copyright Act, Senator Brandis said quite rightly, is, 'overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic.' Senator Brandis promised that he would conduct 'a thorough and exhaustive exercise in law reform' to remedy this and yet Senator Brandis has produced nothing. More than 18 months after receiving it, the government is yet to respond to the Australian Law Reform Commission's report. It has not even begun to grapple with the very serious body of work the commission produced. Farcically, when Senator Brandis is asked time and again what his government will do on copyright reform, he tells the parliament that the government is still considering the commission's report.

 

Senator Brandis did, in his discussion paper of last July, endorse a proposed extension of the safe harbour scheme, an idea worth serious consideration, but even this one mooted reform has apparently fallen by the wayside. The government has not pursued the proposal—though I note that the Senate committee considers it an option worthy of further consideration. This is simply not good enough from the government. Australia cannot hope to support our creative industries nor to encourage new digital practices in business, education and academia if our copyright law is allowed to lapse into obsolescence.

 

Mark Twain, at the turn of the last century, said, 'Only one thing is impossible for God: to find any sense in any copyright law on the planet.' I do not share his pessimism. Given some leadership from the government, this parliament is without doubt capable of passing reasonable, clear and up-to-date copyright laws.

 

If the government does not act, however, if it does allow our copyright laws to stagnate, we might find them becoming not just nonsensical in the new digital era, but worse—irrelevant. Copyright is much too important for us to allow that to happen.

 

I move the second reading amendment circulated in my name, which draws attention to the government's failure to respond to the recommendations of the Australian Law Reform Commission's report on copyright in the digital economy and as well, regrettably, the government's failure to fully respond to the recommendations of the House Standing Committee on Infrastructure and Communication's inquiry into IT pricing directed at encouraging legitimate content downloads. The second reading amendment also calls on the government to do so—that is, to fully respond to both those sets of recommendations by 17 December 2015. I commend the bill to the House.