The government has introduced a bill that will significantly widen the scope of Australia’s site-blocking laws.
Australian copyright law currently allow copyright owners or licensees to apply for a Federal Court injunction to force an Internet service provider to take steps to block their customers from accessing a site that facilitates online piracy.
[More details on the background to today’s announcement and on the current use of the site-blocking scheme are available here: New anti-piracy laws to target search engines.]
The proposed legislation — the Copyright Amendment (Online Infringement) Bill 2018 — has four key pillars.
• Blocking file-hosting services
The current law requires that a site targeted by a blocking injunction are hosted overseas. In addition it must have as its “primary purpose” the infringement, or facilitating the infringement, of copyright.
That threshold would be altered to having the “primary purpose or the primary effect” of infringing, or facilitating the infringement of, copyright.
In an explanatory memorandum accompanying the bill, the government said that the intention of the change is to broaden the range of services subject to possible injunctions. The government said this “may include but is not limited to, some online file-hosting services, such as certain cyberlockers, which are widely used as tools for sharing infringing music and movie files”.
The government said that the threshold is still high enough that it will “exclude online locations that are primarily operated for a legitimate purpose but may contain a small proportion of infringing content”.
• Make search engines block pirate sites
One of the most consequential parts of the bill would be allowing copyright owners to apply for injunctions forcing search engines to remove pirate sites from their indexes.
If the bill is passed a site-blocking injunction may require a search engine operator to “take reasonable steps” to “not provide search results that include domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction”.
The same application may target both ISPs and search engine providers. However, the bill notes that a particular injunction may subject telcos and search providers to different terms and conditions.
“An injunction against an online search engine provider is a reasonable, necessary and proportionate response to the need to protect the rights of creators and their licensees from infringing material being distributed to, or accessed by, persons in Australia,” the government said.
The communications minister will be able to issue regulations exempting some search engines or classes of search engine, however
“The intent is that the scheme will enable injunctions to be sought against major internet search operators that index search results on the World Wide Web and are likely conduits to online locations that host infringing material,” the bill’s explanatory memorandum states.
“It is not intended to capture: smaller operators that do not have the same reach; entities that offer internal (intranet) search functions, entities that provide search services to employees, members or clients that are confined to discrete sites (such as educational and cultural institutions, not-for-profit organisations); or entities that provide search functionality that is limited to their own sites or to particular content or material (such as real estate or employment websites or the National Library of Australia’s Trove search).”
• Reducing the burden of proving a site is hosted overseas
The site-blocking regime only applies to services hosted outside of Australia. As part of an application for a blocking injunction, copyright holders must prove that this is the case for a particular site.
The bill will add a new paragraph that states: “For the purposes of the proceedings, the online location is presumed to be outside Australia, unless the contrary is established.”
The government said that this measure will help streamline court proceedings and make site-blocking applications cheaper.
• Make it easier to block proxy and mirror sites
Currently if a new mirror or proxy service pops up offering access to a site already listed in a blocking injunction, copyright owners are required to return to court in order to add the additional domains, URLs or IP addresses the online locations blocked by ISPs.
The bill will allow them to avoid returning to court, as long as they reach agreement with the telco or search engine that is subject to the injunction.
The bill states the court may issue an injunction that in addition to blocking a specific online location may also “block domain names, URLs and IP addresses that the [carriage service provider and/or search engine] and the owner of the copyright agree, in writing, have started to provide access to the online location after the injunction is made”.
“This subsection clarifies that the Federal Court is able to issue responsive and adaptive injunctions,” the explanatory memorandum states.
“The intention is to build greater flexibility in the scheme so that infringing online locations can be captured more quickly as they relocate and re-emerge, saving the parties and the Court time and expense.”