Comms Alliance backs website blocking in piracy fight

Telco industry body points to UK 'follow the money' strategy against copyright infringement

Telco industry body Communications Alliance has backed a UK developed strategy for combatting online copyright infringement.

In a submission (PDF) to the government's consultation on potential changes to Australia's copyright enforcement regime, the Comms Alliance said that an approach similar to one pursued by the Police Intellectual Property Crime Unit at the City of London Police could be used in Australia.

The UK strategy attempts to cut off funding for piracy sites by replacing advertising on the sites with banners that indicate the website is being investigated for illegal activity. Other actions under a 'follow the money' regime could include seeking to have a domain registrar suspend the site.

"Discussions are underway as to whether a united approach could be adopted by ISPs whereby the industry generally agrees on measures or policies to ensure the relevant websites do not benefit from any of the industry’s advertising revenues," the Comms Alliance submission states.

Such united action from Australian ISPs may require an exemption from the Section 45 of the Competition and Consumer Act, 2010 the submission states.

The organisation also cautiously endorsed the potential use of website blocking to combat copyright infringement, albeit expressing reservations about the outline of such a scheme contained in a government discussion paper.

The government's anti-piracy discussion paper raised the idea of introducing a scheme whereby court orders could be obtained to make Australian ISPs block access to websites.

"Where online copyright infringement is occurring on a commercial scale, rights holders need an efficient mechanism to disrupt business models operated outside of Australia," the discussion paper stated.

The paper cited the ability in a number of EU nations for rights holders to get injunctions that force ISPs to block access to "internet sites that contain infringing content."

"This approach recognises the difficulties in taking enforcement action against entities operating outside the relevant jurisdiction, by giving rights holders an avenue to take immediate action and provides ISPs with the certainty and legal protection of a court order."

Under the proposal in the paper, the court would need to be satisfied that the "dominant purpose" a website was to infringe copyright. Proving this would be the job of rights holders.

The court would also have to consider the "rights of any person likely to be affected" by such an injunction, "whether an injunction is a proportionate response, and "the importance of freedom of expression."

Collateral damage from website blocking — such as the ASIC debacle where thousands of websites were accidentally blocked — can be "difficult to avoid", the Comms Alliance submission states.

However, "an appropriately structured and safeguarded injunctive relief scheme could play an important role in addressing online copyright infringement in Australia," the submission states.

The use of Section 313 of the Telecommunications Act 1997 by government agencies to request ISPs to block websites is currently the subject of a parliamentary inquiry.

The submission opposes the government's proposal to extend authorisation liability in the Copyright Act. The government's paper had explicitly sought ways to reverse undo the decision of the court case brought against ISP iiNet by a group of movie studios.

In that case, the court "determined that the ISP, iiNet, was not liable for authorising the copyright infringements of its subscribers using systems that iiNet did not operate or control, and that there were no reasonable steps that could have been taken by iiNet to reduce its subscribers' infringements," the government discussion paper stated.

"The effect of the decision is to severely limit the circumstances in which an ISP can be found liable for authorising an act by a subscriber that infringes copyright."

Follow Rohan on Twitter: @rohan_p

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