A Senate inquiry has endorsed legislation that will allow copyright owners to obtain Federal Court injunctions forcing search engine operators to remove links to a specified pirate site or sites from their results.
The Senate’s Environment and Communications Legislation Committee yesterday handed down its report into the bill without holding any hearings into the proposed changes to Australia’s site-blocking regime.
Although the legislation has won widespread support from organisations representing Australia's film, TV and music sectors, major tech companies have raised concerns about the bill.
The bill has a number of major components. The current anti-piracy scheme outlined in Section 115a of the Copyright Act limits rights holders to obtaining Federal Court injunctions forcing an Australian ISP to take reasonable steps to block its customers from accessing a particular online location.
That location must be hosted overseas and have as its “primary purpose” to infringe or facilitate the infringement of copyright. The Copyright Amendment (Online Infringement) Bill 2018 will change that threshold test to “primary effect,” which the government says it intended to capture so-called “cyber-locker” sites.
As well as allowing blocking injunctions to list search engines, forcing them to change their results, the bill will also make it easier for rights holders to add mirror and proxy sites to a list of blocked locations without returning to court (currently, adding an additional pathway to a blocked site to a list requires an affidavit and additional orders from the court).
Instead, they may just serve a search engine or telco with a list of URLs, domain names or IPs that “have started to provide access to the online location after the injunction is made” (this does, however, require that the telco or search engine agree that the IPs/URLs/domains provide access to the targeted location).
Google in a submission to the inquiry said that it was “concerned the bill is being rushed forward despite no substantive evidence that the current legislation is deficient”.
“Google is also concerned that there has not been a thorough, comprehensive and independent review of the extent of the alleged problems that the bill is seeking to address and the likely effectiveness of the proposed changes in addressing them,” the submission said.
Digital Industry Group Inc, which along with Google counts Facebook, Twitter and Oath as members, argued that there were a number of problems with the bill, including that it will make the blocking scheme too broad, that the targeting of search engines was “unprecedented”, and that it was a mistake to remove Federal Court oversight from aspects of the scheme.
Telco group Communications Alliance has warned that the proposals in the bill could lead to “overblocking” and potentially affect services such as VPNs or Pinterest.
Queensland University of Technology professor of intellectual property and innovation Dr Matthew Rimmer criticised the government for offering “little time for scrutiny or consideration or consultation” on the bill. Rimmer in his submission to the inquiry noted the limited nature of Australia's copyright safe harbours regime, adding that the “lack of modern copyright exceptions makes the site-blocking and search filtering power even more troublesome and problematic in Australia”.
Support for the bill has come from organisations including Screen Producers Australia, Music Rights Australia, the Australasian Music Publishers' Association Limited (AMPAL) and the Australian Recording Industry Association (ARIA) as well as companies such as Village Roadshow and Foxtel.
The bill received bipartisan support in the House of Representatives and was passed on 24 October.
In its report, the Environment and Communications Legislation Committee acknowledged the concerns about the bill raised in some of the submissions it received. Although it recommended the bill be passed by the Senate, it said that in “light of the concerns raised in submissions, the committee considers that there may be merit in conducting a review of the operation of the bill two years after its enactment.”
“The committee considers that this should provide sufficient time to assess whether the concerns raised in submissions are borne out in practice, and to identify any areas where the operation of the injunctive regime in section 115A could be clarified, rationalised or improved,” the report said.