Bill to block pirate websites gets tick of approval

New anti-piracy regime receives support from Labor and Coalition senators

A bill that will in some circumstances force ISPs to block access to websites linked to online piracy looks almost certain to become law.

The bipartisan report of a Senate inquiry into the proposed legislation recommends the bill be passed.

The government has indicated that it wants the legislation passed before the end of June.

The Senate's Legal and Constitutional Affairs Legislation Committee today released its report into the Copyright Amendment (Online Infringement) Bill 2015. The release of the report has been delayed several times.

The report recommends that parliament pass the bill, subject to a number of mostly minor changes.

The bill will allow rights holders, such as movie studios or music publishers, to apply for a federal court order that will force an ISP to take steps to block its customers from accessing a website whose primary purpose is copyright infringement or facilitating copyright infringement.

The regime will only apply to overseas-based websites.

Among changes that the report recommends are that the bill be reworded so that instead of the court being forced to consider 11 listed criteria before granting a site-blocking injunction, a judge "may" consider the listed criteria.

The criteria currently listed in the bill are:

(a) the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement...
(b) whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;
(c) whether the owner or operator of the online location demonstrates a disregard for copyright generally;
(d) whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
(e) whether disabling access to the online location is a proportionate response in the circumstances;
(f) the impact on any person, or class of persons, likely to be affected by the grant of the injunction;
(g) whether it is in the public interest to disable access to the online location;
(h) whether the owner of the copyright complied with subsection (4) [that is, notifying the relevant website operator and ISP]; (i) any other remedies available under this Act;
(j) any other matter prescribed by the regulations;
(k) any other relevant matter.

If a court order is granted, an ISP will be compelled to take "reasonable steps" to stop its customers accessing the named "online location".

The report recommends that the bill's explanatory memorandum be amended so that "reasonable steps" may include "a requirement to post a landing page at the blocked online location, specifying that the relevant online location has been blocked by a court order and outlining details of that order".

Another recommendation is that the explanatory memorandum also "be amended to provide greater clarity and guidance on the issue of service provider costs and liability subsequent to the service provider’s compliance with court orders"

A section of the report with additional comments from Labor senators indicated support for the bill but also called on the government "to proceed with a broader reform of copyright law".

Attorney-General George Brandis recently said that the government was interested in conducting "root and branch" reform of Australian copyright law.

No cost-benefit analysis

The report notes evidence that a formal cost-benefit analysis of the bill has not been conducted by the government.

"As such, the committee received no information that provided a comparison between the expected benefits to rights holders and the potential costs to other parties," the report states.

However, that committee said that the absence of such an analysis did not prevent it from supporting the bill.

Among the report's recommendations are that two years after the bill becomes law, a review into its effectiveness should be conducted.

Greens oppose site-blocking

A dissenting report by the Greens warned that there was "a significant weight of evidence" showing that the bill would not be effective in combatting piracy.

The bill "will allocate a significant new censorship power to the Court that will be used by copyright owners to block access to online content".

ISPs and website operators will be unlikely to contest site blocks due to cost, the Greens warned.

As a result "many of the site-blocking actions would be likely to pass uncontested through the courts without sufficient advocacy on both sides".

The bill should not be passed, the dissenting report stated.