Piracy blocking bill gets green light

Piracy websites like The Pirate Bay could soon be blocked in Australia, with the Copyright Amendment (Online Infringement) Bill 2015 getting the green light from a Senate committee investigating the legislation.

While the committee has recommended a number of amendments it said there was no reason the bill shouldn’t be passed.

The Bill would allow a copyright holder to apply in the Federal Court of Australia to have an overseas website blocked, if its primary purpose can be proven to facilitate piracy.

In its current form, the Bill stipulates that a court must consider at least eight factors when determining whether a siteblocking application lodged by a rights holder should be granted.

These factors include a disregard for copyright, the ‘flagrancy’ of potential infringement and whether it has been blocked in another jurisdiction.

The Legal and Constitutional Affairs Legislation Committee, which held one public hearing and delayed its report twice, advised an amendment in language from “is to take the following matters into account” to a more watered down “may take the following matters into account,” thereby lowering the threshold for proving infringement.

The report also said Virtual Private Networks (VPNs) could potentially be blocked in the Bill, but are “unlikely to meet the primary purpose test.”

The primary purpose of a VPN is to facilitate privacy, not piracy.

The Greens said in a dissenting report it should not be passed.

“There is a substantial weight of evidence showing that it will be relatively easy to evade the Bill’s provisions, that it does not contain appropriate safeguards, and that it may result in legitimate online sources being blocked,” Greens senator Scott Ludlam wrote.

“Most importantly, there is also a significant weight of evidence showing that the Bill will not meet its aims, as it does not address the underlying cause of online copyright infringement: The continual refusal of offshore rights holders to make their content available in a timely, convenient and affordable manner to Australians.”

The Bill estimates it would cost internet Service Providers $130,000 per year to comply with the legislation.

ISPs, which are already being forced to comply with recently-passed metadata retention legislation, said the Attorney-General George Brandis should heed a call from the committee to further clarify the cost implications of the site blocking scheme.

Communications Alliance CEO John Stanton, who represents the ISPs, said, “the Government’s policy proposal, in July 2014, stated categorically that ‘Rights holders would be required to meet any reasonable costs associated with an ISP giving effect to an order (to block a website).”

“But this core commitment by Government - which is important to minimise the costs on internet consumers -‘went missing’ when it drafted the legislation.

“The Committee has rightly pointed out that the Government has left cost issues opaque in the legislation and told the Government to clarify that service providers should not have to bear the cost of implementing orders to assist copyright holders.”

The Communications Alliance also welcomed the recommendation that the effectiveness of the Bill be reviewed after two years of operation, given the conflicting international evidence as to whether site-blocking can make a material difference to the frequency of online copyright infringement.

Meanwhile, consumer advocacy group CHOICE said the decision was an attempt to “kill VPNs and entrench the ‘Australia Tax” and would drive up the cost of living for ordinary Australians.

“At its heart, this is about protecting uncompetitive local industries who have failed to provide timely and affordable content and services,” a spokeswoman said.

“If this Bill goes ahead it will allow companies to force internet service providers to block access to overseas websites they consider to be infringing their copyright.

“But this isn’t just about stopping access to Pirate Bay - it also covers sites for online tools like VPNs that help Australian consumers pay for legitimate content, for example from US or UK services.”

She said both sides of politics were under a lot of pressure from rights holders to support this new law but asked them to reverse their decision to support the “anti-consumer Bill.”

This article was first published in The Australian.

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Originally published as Piracy blocking bill gets green light