Abbott's copyright kowtow a step backwards

The discussion this week in Business Spectator revolves around how the Abbott government has caved in to sustained pressure from the US media industry and introduced copyright laws into parliament that appear to have the sole purpose of stamping out the rebellion against delayed access to content and rip-off prices. Was it a coincidence that the Communications Minister Malcolm Turnbull introduced the Copyright Amendment (Online Infringement) Bill 2015 into Parliament on 26 March, the same day the data retention bill became law?

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The Abbott government has caved in to sustained pressure from the US media industry and introduced copyright laws into parliament that appear to have the sole purpose of stamping out the rebellion against delayed access to content and rip-off prices.

And to add salt to the wounds, the US media and ICT multinationals have seemingly gone to extraordinary lengths to minimise tax paid in Australia over past decades.

For the moguls, the proposed copyright laws will give them extraordinary power to have websites that they deem to be harmful to their business blocked in Australia. As for Australians that continue to resist, the media giants will now use the courts to gain access to their metadata that will be collected under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015.

Was it a coincidence that the Communications Minister Malcolm Turnbull introduced the Copyright Amendment (Online Infringement) Bill 2015 into Parliament on 26 March, the same day the data retention bill became law?

There is no justification for illegally downloading content, it is breaking the law, but history is littered with examples of citizens rising up when their government fails to take reasonable steps to protect their interests in favor of the big end of town.

Australian parents that can ill afford the fines that will be levied on them either through the courts or by trolling with the threat of legal action unless the parents voluntarily pay a “fee” to cover their children’s misdeeds.

It would seem the Australian government is taking steps to satisfy a list of demands made by the US government and multinationals before they will commit to the Trans-Pacific Partnership – a trade agreement that the Australian government wants to finalise but appears to favor US interests over Australian business and consumer rights.

What the legislation contains

In just under three pages, the bill sets down a simple procedure by which the owner of a copyright may seek an injunction in the Federal Court of Australia against an online location.

The court needs to be satisfied that:

(a) a carriage service provider provides access to an online location outside Australia; and

(b) the online location infringes, or facilitates an infringement of, the copyright; and

(c) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).

The remedy, if the court agrees with the plaintiff, is to grant an injunction to “require the carriage service provider to take reasonable steps to disable access to the online location.”

The legislation will require the Federal Court of Australia to grant an injunction against an online location (website) where “the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia)” potentially without the online location being represented during the proceedings and by granting the injunction the court is preventing Australians from accessing legitimate content hosted by the online location.

Sure the online location can become a party to the action as identified in the next section of the bill, but what happens if the online location’s owner is not aware that proceedings have commenced in the Federal Court of Australia to have access to the online location blocked?

The logic appears to run like this - you can defend yourself if you turn up to court, but after application by the US media company the court might be “satisfied that the owner of the copyright is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person”.

But what is a reasonable effort to contact the owner of an online location? If you were the owner of a website and received an email from a US media company stating that proceedings have commenced in the Federal Court of Australia to have your website blocked in Australia because of a copyright breach in a country other than Australia you just might think the email was SPAM and delete it, or possibly your computer will happily do this for you.

The idea that the Federal Court of Australia is to take into account copyright law for a country other than Australia when making a determination is novel, and possibly ground breaking. Who would have thought the government would attempt to use the Federal Court of Australia to prevent Australians from accessing online content that does not infringe copyright in Australia?

The court has the option to “limit the duration of an injunction or upon application, rescind or vary an injunction granted.” It is reasonable on technical grounds for injunctions to be time limited as the online location is likely to change its location on the network to get around injunctions and failure to apply a time limit may cause ISPs to block an ever expanding number of internet addresses permanently.

The iiNet clause

Section 9 of the Bill is likely to become known as the iiNet clause or the “shut up and do as your told” clause because it states that “the carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings.”

In 2012 iiNet fought through the courts against an attempt by the US Media industry to gain access to iiNet customer information and the result was a resounding win in the High Court. Section 9 aims to silence ISPs like iiNet that might be tempted to fight the injunctions on behalf of their customers by imposing costs on the ISPs if they appear at the Federal Court proceedings to argue against a proposed injunction.

And finally, ISPs will be required to implement the injunctions without compensation, meaning that the cost of compliance by the ISPs will be passed on to customers rather than to the US Media Industry.

What the regulations will need to cover

If an injunction is granted the ISPs will need to know the process that should be taken to block the online location and provide notification to their customers of the website block. How this is to occur with some of the Australian ISPs running out of IPv4 addresses remains to be solved.

Given that the online location may reappear with a different IP address very shortly after an injunction has been enforced, ISPs are likely to be inundated with injunctions at regular intervals and will therefore require additional staff and resources to handle the expected load.

A reasonable regulation will be for a consolidated list of blocked online locations to be maintained, but volunteers among government agencies or the telecommunications industry are not likely to jump at this activity and the cost of constantly keeping it up to date.

There also needs to be an appeals process for the ISPs customers to ask for the block to be removed if they believe it has been made in error without the need for an individual or a group of individuals to incur the cost of taking the matter to the Federal Court of Australia, but how an appeals process would work and who would pay for any representations to the court are yet to be determined.

Interestingly, as the online location has been blocked none of the ISPs customers would be able to go to the website to find the contact details of the owner to alert them to what has happened.

The bill put forth by the government is a shallow attempt to prop up a failed business model that a foreign industry of dinosaurs clings to. It’s an unprecedented attempt to support the US media industry over the rights and aspirations of Australian taxpayers.

A far better solution would be for the government to invest in helping the local media industry move to a new business model that is more in tune with the modern digital economy.

Mark Gregory is a Senior Lecturer in the School of Electrical and Computer Engineering at RMIT University.

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