: Controversial copyright website-blocking law passed

Controversial copyright website-blocking law passed

Leanne O'Donnell

The Copyright Amendment (Online Infringement) Bill 2015 passed in the last sitting week before the Winter recess. The passage of this Bill was preceded by a brief Senate Inquiry that held just one public hearing, which only two Senators attended. The Bill was passed on 22 June with the support of both major parties.

This new law provides that copyright owners can apply to the Federal Court for an order against internet service providers (‘ISPs’) to block access to online locations outside Australia whose primary purpose is to infringe or facilitate the infringement of copyright.

The parties to an action are the owner of the copyright and the ISP. There is, however, a financial incentive for the ISP to not contest the application. The operator of the site in issue can apply to be joined, though this is unlikely given the applications relate to overseas sites.

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.

(2015) 40(3) AltLJ 210
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