Consumer advocacy group says while the copyright bill is designed to target BitTorrent sites, online services such as VPNs could fall victim

This article is more than 5 years old

This article is more than 5 years old

Virtual private networks (VPNs) could be blocked under new copyright legislation being considered by the Senate, according to Australian consumer advocacy group Choice.

VPNs are used by hundreds of thousands of Australians to access overseas content online.

But they could be blocked by the Copyright Amendment (Online Infringement) Bill 2015, which was introduced to parliament last month.

If it is passed, copyright owners would be able to apply for a federal court order requiring internet service providers to block overseas sites whose primary purpose is infringing copyright or facilitating the infringement of copyright.

While the bill is designed to target BitTorrent sites, such as the Pirate Bay, there are concerns other online services such as VPNs and digital storage lockers could fall victim.

The campaigns manager for Choice, Erin Turner, says at least 684,000 Australian households currently employ VPNs to bypass geoblocks and access overseas content at globally competitive prices.

On Friday WikiLeaks revealed Sony has been lobbying movie streaming service Netflix to prevent users from navigating to its international sites to access content, and specifically mentions Australian users that have signed up to US or UK Netflix services.

Turner questioned the effectiveness of the legislation when BitTorrent sites can simply close down and operate from a different internet location. “What the bill will be used for is forcing people into a Foxtel subscription, not stopping piracy,” she said.

Australian law is currently unclear regarding the legality of using a VPN to access a legitimate service, like the video-streaming site Hulu which is blocked in Australia.

The Australian Copyright Council said using a VPN to circumvent a geoblock may be considered copyright infringement if it requires downloading or streaming in a way that is without the permission of the copyright owner.

However, according to a policy FAQ posted on the website of the minister for communications, Malcolm Turnbull, using a VPN to circumvent “international commercial arrangement to protect copyright in different countries or regions” is not illegal under the Copyright Act.

Choice says if the bill is to be passed, it should ensure the use of a VPN to access legitimate content does not constitute an infringement of copyright.

“The core concern is do Australians have a right to overcome frustrating business attempts to lock them in the local markets? We think they do,” said Turner.

Turner said a more effective method of dealing with unlawful downloading is to introduce legitimate services, such as Netflix, that offer content in a timely and affordable matter.

But according to Dan Rosen, CEO of Aria, new legal services shouldn’t be made to compete with illegal services. And although there are now 30 digital musical distribution services, such as Spotify, operating in Australia, the problem of piracy continues to plague the music industry. “We’ve made the content available at a resonable price [but] piracy hasn’t diminished,” he said.

“There needs to be a three-pronged approach: make it easier for people to do the right thing by investing in legal services, educate people on those services, and make it harder for people to access illegal services.”

In its submission to senators, the Australian Communications Consumer Action Network (ACCAN) also sought clarification around the matter of VPNs and said such services offered consumers more choice and better prices.

ACCAN policy officer Xavier O’Halloran said: “We don’t think a copyright act should be used to throw up new trade barriers around Australia, just because rights holder want to use it that way.”

Copyright expert Kimberlee Weatherall says it is difficult to predict if the bill will be used by copyright holders to argue for an injunction against a VPN service because it lacks clarity regarding services and sites whose primary purpose is not copyright infringement, although may be being used for that purpose.

Weatherall said it will be “hard to argue for, because a court has to be made aware that VPNs have all sort of legitimate uses, such as safe data retention”. She said as the bill stands it will be up to the court judge to decide proportionality.

The bill is currently under review by the Senate legal and constitutional affairs legislation committee, with a report due on 13 May.