BILLS - Copyright Amendment (Online Infringement) Bill 2018 - Second Reading
Posted in Pat's Speeches | November 28, 2018
I rise to speak to the Copyright Amendment (Online Infringement) Bill 2018. Labor will be supporting this bill because it makes a number of improvements to the existing regime for protecting the rights of artists and others whose livelihoods depend on them being paid for what they create, whether that's music, movies, television programs, books or any other form of intellectual property. Labor supports this bill because it will strengthen the current regime under which a court can make orders blocking access to websites that have the primary purpose or the primary effect of infringing copyright.
I should note, however, that we have been disappointed at the way the government initially handled this bill, which led to some stakeholders telling us that they were not adequately consulted or given the chance to enter meaningful dialogue with the government on the final version of the bill. To allow stakeholders with concerns about the changes to the site-blocking regime being made by this bill to be properly heard and their concerns considered, earlier this month Labor supported a crossbench motion for an inquiry into this bill by the Senate Environment and Communications Legislation Committee. The referral to the committee was made on 13 November 2018. The committee then advertised the inquiry on its website and wrote to relevant individuals and organisations inviting submissions. The committee did not hold a public hearing, but committee members carefully examined the 26 submissions received. I thank submitters for taking the time to write to the committee and I thank the committee members for their diligent work in reviewing those submissions and preparing a report, which was tabled on 26 November.
The committee's report details the concerns raised by some submitters and provides comprehensive responses to those concerned. Ultimately, the committee made the following two recommendations:
2.48 The committee recommends that the government review the effectiveness of the measures contained in the bill two years after its enactment.
2.49 The committee recommends that the Senate pass the bill.
Labor accepts both recommendations. We understand that the government has committed to review the effectiveness of the measures contained in the bill two years after its enactment, in accordance with the committee's first recommendation. Labor welcomes that commitment and will take this opportunity to say that, if there is a change of government at the next election, a Shorten Labor government would also carry out that recommendation and review the effectiveness of the measures contained in the bill after its enactment.
I turn now to what this bill will achieve. While the digital revolution has created enormous benefits for our society and economy, it has also been highly disruptive. The rapid expansion of online services has created many new challenges for law enforcement. But we in Labor do not believe the online world should be allowed to exist in a lawless frontier. To the contrary, we in Labor understand the importance of effective regulation in this area, whether it's to stop the selling of illegal weapons, to shut down the vile trade in child pornography, to prevent online radicalisation of Australians by terrorist groups or, as this bill does, to prevent the theft of intellectual property. This bill makes important improvements to the Copyright Act that will help ensure it continues to protect intellectual property rights in the digital age.
We in Labor recognise the vital importance of Australia's creative industries. Our musicians, our filmmakers, our television production industry and our artists all contribute enormously to our society in both economic and cultural terms. The stories Australians love the most are our stories—stories about our nation, our history, our people. Whether on television, on the big screen or in books, these stories are all produced by people who rely on copyright laws to protect their creative work. It is the copyright law that ensures those in our creative industry are paid for the work that they do. Chapter 9 of the Australian Labor Party's National Platform is titled 'A fair go for all'. At paragraph 300, the ALP sets out the importance of maintaining copyright in the following terms:
The legal framework of copyright is necessary to ensure the income generated by arts, culture and heritage is fairly distributed between the creators and the institutions and entrepreneurs who make it available. A successful copyright framework will support the education, arts, culture, and heritage of Australia by:
Developing and maintaining a national identity in the Australian creative industries;
Protecting the intellectual property rights of content creators;
Supporting new and emerging Australian creative talent;
Meeting consumer expectations of speed to market;
Securing the supply and diversity of Australian-produced intellectual property;
Promoting competitive, sustainable and innovative Australian creative industries; and
Promoting exports of Australian creative product to foreign territories.
Our policy on copyright is consistent with our long-held view about the importance of arts and culture in our national life.
When last in government and over the last five years of opposition, Labor has been working to support sensible changes to our copyright laws to ensure that they remain fit for purpose in protecting our creative industries and our artists. One of the most significant threats to the music and screen industries since the advent of the internet has been the rise of online piracy, because online piracy undermines the capacity of creators, including musicians and screen industry professionals, to sell their work. To help reduce online piracy, in 2015 Labor worked with the government to introduce amendments to the Copyright Act 1968 that allow the courts to issue site-blocking orders that oblige carriage service providers to block access to identified pirate sites. These site-blocking injunctions can only be issued by a judge and only for websites outside of Australia whose primary purpose has been proven to be infringing copyright material. This regime, under section 115A of the Copyright Act, is necessary because many pirate sites operate in overseas jurisdictions with lax copyright laws. The pirate sites operating in these foreign jurisdictions are generally out of reach of Australian law enforcement, yet the damage these sites do to our creative industries and so to our economy is considerable.
Representatives of our creative industries and artists in Australia were very supportive of the regime introduced by section 115A, and since 2015 these reforms have been successfully used to block a number of pirate sites, with a measurable drop in the rate of online copyright infringements in Australia. However, rates of online copyright infringement in Australia remain high in contrast to comparable overseas jurisdictions and new forms of copyright infringement are always being developed as the digital world rapidly changes.
This bill responds to the ongoing challenge of online piracy by strengthening the site-blocking regime in section 115A of the Copyright Act. In summary, it will expand the services that can be subject to injunctions to include online search engine providers such as Google, in addition to carriage service providers such as Telstra, to compel the providers to take reasonable steps to not provide search results that direct users to copyright infringing websites. This measure is intended to reinforce the regime by ensuring that searches do not provide easy pathways to copyright infringing websites or to already blocked copyright infringing sites through alternative pathways and web addresses. It allows injunctions to be sought to block access to sites which have the primary purpose or primary effect of infringing or facilitating the infringement of copyright. This is a significant expansion of the scope of the site-blocking scheme, which has been limited to sites with the primary purpose only of infringing copyright. Stakeholders had been concerned that new websites such as cyberlocker sites are frequently used for copyright infringement through file sharing of music, movies and television shows, but it is difficult to prove that they exist for that purpose or that primary purpose, so they would fall outside the scheme. It is expected that the addition of a primary effects test will bring such sites within the scheme without unduly widening its scope.
This bill will also allow the court to issue more flexible injunctions that can be adopted to maintain a blocking order without the application having to return to court for a new injunction when pirate sites change address or access pathways. These adaptable injunctions will provide for the blocking of additional domain sites, IP addresses and search results by agreement with the copyright owners and service providers. This bill also helps to avoid wasteful and difficult evidentiary inquiries for applicants to establish the location of web hosting sites by putting in place a rebuttable presumption that an online location is outside Australia.
Finally, this bill includes a measure that will enable the minister, by disallowable instrument, to declare that particular onsite search engine providers or a class of those providers are exempted from the scheme. This last measure is essentially a safeguard to ensure that injunctions are directed only against the largest service providers facilitating the infringement of copyright.
Creative industry representatives in Australia that Labor has been consulting have already indicated support for the changes proposed in this bill. This includes our music and screen production industries. We know that the search engine providers have been actively involved in the battle against online piracy, and we trust that they will continue that battle. Although some companies and individuals have expressed concerns about the potential of this bill to be used inappropriately to shut down legitimate sites, we in Labor are satisfied that it contains sufficient safeguards to prevent its misuse. In particular, I point out that injunctions can only be issued in narrow circumstances by a Federal Court judge, with the onus of proof on the applicant seeking the injunction. In making a decision about whether to issue a site-blocking injunction, the judge must take into account a wide range of factors. Under subsection (5) of section 115A of the Copyright Act, the court may take the following matters, among others, into account:
(a) the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement …
… … …
(c) whether the owner or operator of the online location demonstrates a disregard for copyright generally;
(d) whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
(e) whether disabling access to the online location is a proportionate response in the circumstances;
(f) the impact on any person, or class of persons, likely to be affected by the grant of the injunction;
(g) whether it is in the public interest to disable access to the online location;
… … …
(k) any other relevant matter.
Any decision by a judge to issue an order under section 115 is also subject to appeal.
As with all new legislative regimes, we in Labor are always ready to hear feedback from affected and interested parties about the way in which the regime is operating. If there are any unforeseen problems with the way in which the modifications to section 115A operate in practice, we will of course be willing to consider whether further changes should be made to that part of the Copyright Act to ensure it operates efficiently and effectively to reduce online piracy.
We in Labor are pleased that the protection of copyright is an area of bipartisan agreement. In the past, we have been concerned by some of the government's ill-considered announcements on policies that would roll back copyright protections, such as in relation to safe-harbour laws. However, Labor has stood with Australia's creative industries in opposition to the government's reckless plans to diminish copyright protections, and we were pleased to see that the government backed down on those proposals. Labor is pleased to see that the government has come around to understanding the importance of regulating to protect the rights of our artists and the economic viability and cultural values of our creative industries in the digital age. We support this bill as a means to further the importance of these objectives