24 October 2018

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.

I want to make some brief remarks on the Copyright Amendment (Online Infringement) Bill 2018, which makes important improvements to the Copyright Act that help to ensure it continues to protect intellectual property rights in the digital age. Labor will be supporting the bill because it makes a number of improvements to the existing regime for the blocking of websites that infringe copyright.

In turning to the digital age in which we find ourselves, the digital revolution has created enormous benefits for our society and our economy. But it has also been highly disruptive. Around the world—and we should never think that this is particular to Australia—lawmakers continue to grapple with the regulation of the internet. Indeed, earlier this month, the Minister for Communications and the Arts delivered a speech to the Sydney Institute entitled, 'The internet – not an ungoverned space'. But, of course, in Australia we have long moved on from the question of whether or not the internet is governed. While the Minister for Communications may only have recently become alive to it, Australia has long recognised the internet as a governed space—and, indeed, has regulated it.

Well over 20 years ago, the Parliamentary Library published a research paper entitled, 'Can the internet be regulated?' Among other things, that paper—which was written in 1995-96—noted that legislation that was being considered by the Australian states and territories provided an incentive for establishing a code of conduct, and the then Australian Broadcasting Authority had announced an inquiry into the regulation of content online services, proposing the exploration of various strategies, including codes of practice, complaints procedures and education programs, in addition to devices for blocking or filtering certain material and offence provisions.

Following that, early legislative reforms directed at regulation of the internet in Australia included amendments in 1999 to the Broadcasting Services Act 1992, which established a regulatory regime for internet service providers and online content. Other early legislative measures included the Cybercrime Act 2001 and the Spam Act 2003. Alongside these developments at the turn of the millennium, the High Court of Australia delivered its landmark case in Dow Jones v Gutnick, which had repercussions far beyond defamation litigation, for which it was concerned. The speech by the Minister for Communications this month stated that ‘it’s important to recognise that the internet is not the "wild west", where the rule of law and standards of decency shouldn’t apply'.

However, the question has long been not whether to regulate the internet but how to best regulate the internet. Copyright scholars were quick to recognise the impact of code, governance and regulation of content on the internet. In her review of 'Law and Internet Cultures by Kathy Bowrey' in the 2005 Sydney Law Review, Kim Weatherall stated:

As a teacher of Internet Law, I often see debates in class divide between those who fear too much control, and those who are confident that law is futile here. The dichotomy makes for an easy debate, but one that is ultimately cynical and unsatisfying. Not only does the discussion degenerate to technical issues that are a matter of conjecture, but, convenient as such dichotomies may be, they conflict with our intuitive sense of the way things actually work. We know that both the early cyber-libertarians and cyber-cynics were wrong, and we know that the future is neither one of perfect control, nor of powerlessness.

It's instructive to go on further, because she states:

Ever since the earliest writings in Internet Law Scholarship, commentators have tended towards one of two opposing views. One the one hand, we have what you might call the Orwellian vision: that formal Law, in partnership with Technology will tend towards the ‘perfect control’ of the citizenry, whether by public or private entities.

This basic ‘Code is Law’ idea has been discussed, refined, developed and critiqued, but it remains influential in current debates. In copyright law, for example, the fear of ‘digital lock-up’ through a combination of technology and law continues to surface in current discussion of anti-circumvention law. It can also be seen in debates about privacy law, reflected in fears regarding the digital potential for omnipresent surveillance and data collection, facilitated by privacy laws that are insufficiently protective of individual rights.

While it is great to see the Minister for Communications catch up on the idea that laws and norms, including copyright, should apply in the virtual world, just as they do in the physical world, the fact is that a nuanced and detailed debate about copyright and the digital economy has been going on for a long time.

In 2012, the Australian Law Reform Commission received terms of reference for an inquiry into copyright and the digital economy. The ALRC was asked to consider whether exceptions and statutory licences in the Copyright Act were adequate and appropriate in the digital environment and whether further exceptions should be recommended. The issues considered by the ALRC covered a broad range of topics, from caching and indexing to cloud computing; online use for social, private or domestic purposes; transformative use, such as mash-ups or sampling in music; and retransmission of free-to-air broadcasts. The inquiry also looked at issues affecting libraries and cultural institutions, such as preservation and digitisation, contracting out of copyright exceptions and orphan works—that is, works where the owner of copyright cannot be easily established.

I want to look at Labor's calls for stronger restrictions. Over the last five years in opposition, and when we were last in government, Labor has been working to support changes to our copyright laws to ensure they remain fit for purpose in protecting our creative industries and our artists. One of the most significant threats to the music and screen industry since the advent of the internet has been the rise of online piracy because it undermines the capacity of creators, including musicians and screen industry professionals, to profit from their work. We in Labor recognise the importance of Australia's creative industries. Our musicians, our filmmakers, our TV production sector, our artists—all of them contribute enormously to our society in both economic and cultural terms. A successful copyright framework will support the education, arts, culture and heritage of Australia by including, 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 creative, competitive, sustainable and innovative Australian creative industries; and promoting exports of Australian creative product to foreign territories.

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. 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 their sites do to our creative industries is considerable. Representatives of our creative industries and artists in Australia were very supportive of the regime introduced by these amendments and, since 2015, these reforms have been successful in blocking a number of pirate sites, with a measurable drop in the rate of online copyright infringement in Australia. However, the rate of online copyright infringement in Australia remains high in comparison with overseas jurisdictions comparable to Australia, 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, this bill will expand the services that can be subject to injunctions to include online search engine providers, such as Google, in addition to existing carriage service providers, such as Telstra. It will compel the provider to take reasonable steps not to provide search results that direct users to copyright-infringing websites. This measure is intended to reinforce site-blocking orders by ensuring that searches do not provide easy pathways to blocked sites through alternative pathways and web addresses. It will allow injunctions to be sought to block access to sites with 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 had been limited to sites with the primary purpose of infringing copyright.

Stakeholders have been concerned that new websites—such as cyberlocker sites, which are frequently used for copyright infringement through the file-sharing of music, movies and TV shows, but may not exist for that primary purpose—fell outside of the scheme. It is expected that the addition of a primary effect test will bring such sites within the scheme.

This bill will allow the courts to issue more flexible injunctions that can be adapted to maintain a blocking order without the applicant having to return to court for a new injunction when pirate sites change addresses or access pathways. These adaptable injunctions will provide for the blocking of additional domain names, IP addresses and search results by agreement with the copyright owner and the service provider. This bill will help to avoid wasteful and difficult evidential 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. The bill will enable the Minister, by disallowable instrument, to declare that particular online search engine providers, or a class of those providers, are exempt from the scheme. This last measure is essentially a safeguard to ensure that injunctions are directed only against larger service providers facilitating the infringement of copyright.

In conclusion, creative industry representatives in Australia, with whom Labor have been consulting, have already indicated support for the changes proposed in this bill. This bill that is now before us is primarily aimed at preventing digital piracy for the benefit of Australian creative industries. The online world has created many challenges for law enforcement. We know that search engine providers have been actively involved in the battle against online piracy, and we trust they will use the tools these amendments provide to continue that battle.

We, in Labor, are pleased that the protection of copyright is an area of bipartisan agreement. In the past, we have been concerned by this Government's ill-considered announcement on some policies that would roll back copyright protections, such as in relation to safe harbour laws. However, Australian creative industries united in opposition to the Government's plans at that time to diminish copyright protections. We were pleased to see that the Government, in that case, backed down. Labor is pleased to see that the Government has come around to understanding the importance of regulating to protect the rights of content owners in the digital era, and we support this bill as a means to further that objective.