ISPs (and their users) will bear the costs of implementation of the order. In the UK, there have been at least 121 websites blocked by ISPs as a result of similar powers in their copyright legislation over the last three years.
The new power to block sites is a blunt tool. One controversial aspect of Australia’s law is that the copyright owner can seek an order in relation to online locations that ‘facilitate’ copyright infringement. Facilitate is not defined in the legislation, so has its ordinary dictionary meaning. The inclusion of ‘facilitate’ takes the law further than its European counterparts which generally require the use of the online location itself to infringe copyright. This new law could be used to block legitimate sites that may be used to assist copyright infringement. The Australian Digital Alliance has highlighted that the law has the potential to capture tools from VPNs, programs to share large files to cloud storage sites, used legitimately by many Australians.
At the time of writing, no applications have been lodged with the Federal Court seeking to have sites blocked under these new laws.
During the course of the debate on this Bill, the government did agree to an amendment requiring it to respond to the Australian Law Reform Commission’s Copyright and the Digital Economy report by 17 September 2015. The key recommendation of this report, tabled in February last year, was for the introduction of a fair use exception to Australian copyright law.
LEANNE O’DONNELL is a policy lawyer at the Law Institute of Victoria.