Ye Be Warned, Pirates Be Operatin’ In These Waters!

7 July, 2015
Posted by Jennifer

The Copyright Amendment (Online Infringement) Act 2015 (Cth) passed through Senate on 22 June 2015, backed by both the ALP and the Coalition Government. While there are many who herald its passing as a positive step towards stronger protection of the rights of International and Australian copyright owners, others see it is as a misguided, potentially harmful and ultimately ineffective attempt to address the problem.

What does it do?

The new law allows copyright owners to make a request to a Federal Court judge requiring a Carriage Service Provider (CSP) to ‘block’ an overseas website if its ‘primary purpose’ is to infringe, or to facilitate infringement of copyright. In deciding whether to block a website, the Court must take into account:

– the flagrancy of the infringement;

– whether blocking the website is a proportionate response;

– the impact on any person likely to be affected; and

– the public interest.

These considerations are designed to set a fairly high threshold for the granting of an injunction, so as to reduce the risk of the law being used to block sites that have legitimate functions.

Under the new law, soon it will be much harder to download illegal content and more content will be sourced through legitimate means, meaning more revenue for Copyright owners. In theory.

Criticisms

The Greens opposed the Bill in the Senate, claiming that the new law focuses on the interests of rights holders over consumers and is against the public interest. The Greens also raised concerns that ambiguities in the law may lead to ‘collateral damage’, where sites that facilitate the sharing of both legitimate and non-legitimate content, such as dropbox.com may end up being blocked.

There are also greater public concerns that the scope of the law may be widened in the future, and the lack of definition of certain terms, particularly ‘primary purpose’, can allow parties to use the law to achieve ulterior motives. For example, under the new law, the Government could hypothetically apply to have wikileaks blocked, because they would most likely own the copyright in the literary works posted on the website.

Further, the scope of CSPs’ costs and liabilities is still a little unclear. Recommendations have been adopted to address this, and confirm that CSPs cannot be held liable in relation to carrying out court orders, and costs for blocking the websites can be allocated to the copyright owners. Nevertheless, there are valid concerns that ultimately any costs of implementing the Act imposed on CSPs will be passed on to the consumer.

Will it work?

The most valid criticism of the new law is that it simply may not work. Blocking websites can be easily circumvented by both consumers and providers of illegal content alike. The pirate bay, for example, prides itself on its resilience to blockages in overseas jurisdictions, and currently rotates between six different domains as well as having hundreds of mirror sites. The Hydra, a many headed dragon, is displayed at times on the pirate bay website, boasting that if you try to cut off its head, two will grow in its place.

In any event, consumers can easily and affordably use a Virtual Private Network (VPN) to gain access to blocked sites. A VPN hides a user’s geographic location, and already many Australians are using one in order to be able to access the US version of Netflix.

Summary

It will certainly be interesting to see how the new law plays out and whether it help bring some relief to aggrieved copyright owners. We are also interested to see how legitimate streaming services such as Netflix, Stan and Spotify continue to integrate with traditional media and whether rights holders (especially independents) start to see real financial benefit from these sources.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter

For further information on copyright and protecting your rights, please contact hello@studiolegal.com.au or phone the office 03 9521 2128.

Written by Studio Legal (C) 2015.  


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