Government will force ISPs to block websites in piracy fight

As part of its crackdown on unauthorised downloading of copyright material, the government will push ahead with the introduction of a scheme that will allow rights holders to apply for court orders to force ISPs to block websites.

The scheme "will enable a court to order the blocking of overseas hosted websites that can be shown to be primarily for the purpose of facilitating online copyright infringement" states a letter sent by Communications Minister Malcolm Turnbull and Attorney-General George Brandis to ISPs and rights holders.

The ministers did not offer any detail on the operation of the site-blocking scheme in the letter nor in a joint media statement issued today.

The introduction of such a scheme was raised as a possibility in a government discussion paper published earlier this year.

"Where online copyright infringement is occurring on a commercial scale, rights holders need an efficient mechanism to disrupt business models operated outside of Australia," the paper stated.

The paper cited the ability in a number of EU nations for rights holders to get injunctions that force ISPs to block access to "internet sites that contain infringing content."

"This approach recognises the difficulties in taking enforcement action against entities operating outside the relevant jurisdiction, by giving rights holders an avenue to take immediate action and provides ISPs with the certainty and legal protection of a court order."

Under the proposal in the paper, the court would need to be satisfied that the "dominant purpose" a website was to infringe copyright. Proving this would be the job of rights holders.

The court would also have to consider the "rights of any person likely to be affected" by such an injunction, "whether an injunction is a proportionate response", and "the importance of freedom of expression."

Warning scheme

The second major component of the copyright crackdown revealed by the government today is the introduction of a system of warning notices for ISP customers alleged to have violated copyright, through unauthorised downloading of content via BitTorrent for example.

The government will push for the telco industry and rights holders to jointly produce a code that will be registered by the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997.

If the parties are unable to come to an agreement by 8 April 2015, the government will "prescribe binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act, on such terms as agreed by us," the letter states.

Any code should mandate that ISPs take "reasonable steps" including a warning notice scheme "to deter online copyright infringement on their network, when they are made aware of infringing subscribers, in a manner that is proportionate to the infringement". Cost of the scheme should be divided "fairly" between ISPs and rights holders.

The code must also "include a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices".

The statement and letter make no mention of previous proposal to expand the circumstances in which an ISP could be held liable for copyright infringement by its users.

Previous discussions between rights holders and ISPs over a warning notice scheme have failed, largely over the issue of apportioning costs.

The effectiveness of such schemes has also been questioned.

"Graduated response schemes have been variously criticized for impinging on the human right to freedom of expression, for breaching privacy and for failing to comply with key tenets of the rule of law," a 2013 research paper by Monash University academic Rebecca Giblin states.

"But quite separate from those criticisms, their legitimacy is seriously thrown into question by the startling lack of evidence that graduated response helps achieve any of copyright law’s underlying aims...

"There is no evidence demonstrating a causal connection between graduated response and reduced infringement. If 'effectiveness' means reducing infringement, then graduated response is not effective. Furthermore, there is little convincing evidence that any variety of graduated response increases the size of the legitimate market."

The government will review the effectiveness of the copyright crackdown within 18 months of a code coming into operation.

"The issue of price and availability of legitimate content in Australia was a key factor raised in the majority of submissions to the Online Copyright Infringement Discussion Paper," the letter states.

"The Government notes recent efforts by the industry in this area, and expects industry to continue to respond to this demand from consumers in the digital market."

A survey by Choice published yesterday found that price was the most common reason for people who violated copyright. The other two most commonly cited reasons where the timeliness of content being available in Australia (41 per cent) and convenience (28 per cent).

Follow Rohan on Twitter: @rohan_p