A parliamentary committee has recommended that the federal government go ahead with controversial plans to introduce new laws requiring ISPs to block offshore websites that facilitate online film and television piracy.
Communications Minister Malcolm Turnbull referred the bill to the committee after introducing it to parliament in March and today it released an interim report recommending it be passed with some minor amendments.
The bill contains changes to Australian copyright laws that would give content owners the ability seek federal court orders requiring ISPs to block access to websites if they can prove that their “primary purpose” is to facilitate copyright infringement.
In its report released today the committee accepted the Attorney General Department’s view that the laws would be valuable in disrupting online piracy despite concerns raised by legal and technology industry stakeholders about their effectiveness.
“The Attorney-General's Department (AGD) reiterated that while infringing sites may be re-established at a different online location, empirical evidence shows that they tend to reappear at a reduced rate. The AGD also stressed that, even if the effect of an injunction were temporary, the injunction would provide a secondary purpose, that being disruption of the business of online infringement,” the committee wrote.
The committee recommended changes to the bill including that internet users attempting to access be directed to a landing page explaining that the site has been blocked and that the laws are reviewed after two years to test their efficacy.
It also resisted lobbying by content holders to water down the legal test that copyright owners for achieving court orders to block sites maintaining that they can only be issued against sites for which copyright infringement is the “primary purpose”. It also recommended that the courts be given extra guidance on the meaning of primary purpose.
Australia’s peak telecommunications industry, Communications Alliance, today welcomed the bill but was scathing in its criticism of the committee for leaving questions on the cost incurred by ISPs to comply with orders hazy.
The committee has previously estimated that complying with the order would cost ISPs up to $130,000 per year. Communications Alliance chief executive said that the government had not met its commitment to ensure that that copyright holders should foot the bill.
Mr Stanton said the government made the commitment in July 2014.
“But this core commitment by government – which is important to minimise the costs on internet consumers - ‘went missing’ when it drafted the legislation,” Mr Stanton said.
“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,” he added.
The laws have been introduced to mirror similar laws passed in overseas jurisdictions, particularly the UK which established a similar scheme in 2011.
However, Australian technology industry groups argued to the committee that the UK laws have failed and that the blocking mechanisms are too easy to circumvent.
In submission to the committee, the Australian Communications Consumer Action Network (ACCAN) said that the new laws would leave copyright owners “playing an expensive game of whack-a-mole”.
Some in the legal community have shared that view. Shelston IP lawyers wrote of the new laws on its website: “The operator of a foreign online location that has been blocked could avoid the effect of a blocking injunction by moving to another foreign location for what we imagine would be a relatively low cost. The copyright owner would then be forced to make another application for a blocking injunction in respect of the new foreign location, which would require preparation of a new case, additional legal costs and the payment of additional fees. Given the significant costs of making multiple blocking injunction applications, we believe that copyright owners would only apply for blocking injunctions to block the most contumelious of online locations”.
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