In brief

  • The Australian Government recently released a discussion paper1 outlining proposed amendments to the Copyright Act 1968 (Cth)(the Act) to tackle online copyright infringement.
  • This article summaries the Government’s proposals, which include the requirement that internet service providers (ISPs) take ‘reasonable steps’ to prevent copyright infringement, even where they are powerless to stop it. 
  • Public submissions on the proposals are due 1 September 2014.

Extended authorisation liability

By its first proposal, the Government is seeking to impose further obligations on ISPs to prevent copyright infringement by its customers, effectively overturning the 2012 ruling of the High Court in iiNet.2

In iiNet, a number of film and television companies argued that by failing to prevent illegal downloading by its customers, iiNet had ‘authorised’ copyright infringements by its users, which itself constitutes an act of secondary infringement under the Act.3 However, the High Court held that as iiNet had no direct power to prevent customers from illegally downloading content, it was not liable for authorising copyright infringement.

The Government proposes to amend the Act so that an absence of power to prevent infringement will not preclude an ISP from taking ‘reasonable steps’ to prevent it. The Government is hoping industry will be able to agree on what would constitute ‘reasonable steps’ to be taken by ISPs, but has reserved the power to prescribe measures itself if industry fails to develop effective schemes or arrangements. The Government has not indicated what those measures might entail. However, reference is made to the US Copyright Alert System, the Creative Content UK scheme and the ‘graduated response scheme’ enacted in New Zealand, and so it is possible the Government will draw on the approaches in those jurisdictions.

If adopted, there is concern amongst critics that the proposals will over-burden ISPs, making it impossible for them deliver their service and setting them up as targets for litigation. 

Blocking infringing websites

The second proposal would enable rights holders to apply for an injunction to force ISPs to block access to overseas websites which have as their ‘dominant purpose’ the infringement of copyright. The proposal is limited to overseas websites on the basis that rights holders can take direct action against websites operated from within Australia.

Rights holders would not need to establish that an ISP had authorised infringement and can apply for an injunction against several ISPs in the one application. This is intended to prevent infringers from circumventing the effect of an injunction by switching ISPs.

Critics argue such measures are a threat to civil liberties and are concerned it could lead to opportunities for Government censorship if permitted to extend beyond the original intentions.

Extended Safe Harbour

Under the Act as currently drafted, the remedies for copyright infringement that are available against ‘carriage service providers’ (e.g. ISPs) engaging in certain activities (i.e. acting as a conduit, caching, storing or referring) are limited to non-monetary remedies, provided certain conditions are met.

The Government proposes to extend the ‘safe harbour’ to all service providers, thus ensuring that entities such as universities and online search engines will enjoy the same protection.

Comment

ISPs are easier to locate and have deeper pockets than the average internet user. In addition, they are likely to know the identities of their customers and are therefore well-placed to help prevent copyright infringement by their customers. It is therefore perhaps understandable why the Government is proposing to increase the obligations imposed on ISPs to prevent copyright infringement.

However, according to the 2013 IT Pricing Inquiry,4 Australians pay around 50% more for IT products (such as hardware, software, music and games) than consumers in the US, so there are questions over why the paper fails to consider the role that rights holders should play in discouraging piracy by ensuring content can be lawfully accessed in a timely and affordable manner. Indeed, the paper explicitly states that the Government is not seeking comment on issues raised in the 2013 IT Pricing Enquiry.

Have your say

The paper invites submissions from the public on the proposals and to the specific questions raised in the paper. If you would like to engage with and respond to some of the proposals, you will need to act quickly as the deadline for submissions is 1 September 2014.