The recently introduced Copyright Amendment (Online Infringement) Bill 2018 aims to provide the solution. Born out of frustration with apparent loopholes in current legislation, the new proposals are targeted at circumvention techniques that render blocking less effective.
As previously reported, the bill will enable mirrors and proxies of pirate sites to be blocked much more quickly out of court, after an injunction has been handed down. It also targets search engines such as Google, which will be forbidden from displaying links to blocked sites in search results.
Another, perhaps less obvious detail in the legislation was highlighted during the bill’s second reading in parliament yesterday.
Under current law, injunctions are able to block access to sites “with a primary purpose to infringe”, meaning that the more blatant torrent and streaming portals fall neatly into place. However, amendments currently on the table will also target sites with “the primary effect” of infringing of facilitating infringement, which is a subtle but important addition.
This expansion has the potential to scoop up all kinds of services, particularly file-hosting platforms that, for whatever reason, prove popular with pirates. With set-top box piracy one of the hottest topics at the moment, it’s clear that this detail can be used to target content-agnostic services where movies and TV shows may be stored.
“This addition of the words ‘primary effect’ 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 only,” said Shadow Attorney-General Mark Dreyfus.
“Stakeholders had been concerned that new websites such as cyberlocker sites, which are frequently used for copyright infringement through file sharing of music, movies and TV shows but which it is difficult to prove exist for that primary purpose, fell outside the scheme. It’s expected the addition of a primary effect test will bring such sites within the scheme but without unduly widening its scope.”
While the ‘primary effect’ clause could potentially suck in plenty of targets, the bill does allow ministers to exercise discretion. Should the need arise, certain platforms – whether file-hosters or search engines – can be completely excluded from the scheme.
“[This] measure is essentially a safeguard to ensure that injunctions are directed only against larger service providers facilitating the infringing of copyright,” Dreyfus added.
The Copyright Amendment (Online Infringement) Bill 2018 is fully supported by both the government and the Labor opposition, so it’s likely to pass into law unhindered. However, there are dissenting voices – not necessarily over the need to protect copyright – but in respect of the entertainment industries’ failure to do more.
In a scathing attack, Labor MP Ed Husic urged people to “face up to big rights holders” and the “hysterical arguments” presented in the anti-piracy debate.
“No-one supports piracy. No-one should support piracy. Piracy is theft — I totally get that,” Husic said.
“We support this bill, but the problem is that the bloated, greedy, resistant-to-change rights holders will always refuse to reform in this space. Copyright reform is used as their way to shield themselves from the modern era, to shield themselves from new ways of doing things.”
Husic challenged the notion that the Internet presented a challenge to rightsholders; their mentality and resistance to change is their biggest problem.
“These rights holders think that, by constantly using legal mechanisms through this place and elsewhere, piracy will disappear. The reality is that piracy is a reflection of a market failure,” he said.
“I do not excuse, condone or support piracy, but I do recognize that it is a reflection of market failure, where producers are making an offering that is not in line with consumer expectations and the access is not in line with consumer expectation.
“What we are providing for with these types of bills, which the rights holders all champion, support and claim credit for, is a form of regulatory hallucinogen, where they think that, if they get this type of regulatory reform through, piracy will disappear. No, it won’t. When rights holders get serious about the consumer offering and the way in which they’re helping consumers access content in a much more affordable way, that will have a bigger impact,” he added.
In his speech (available here), Husic also took aim at Village Roadshow chief Graham Burke, whose fiery anti-piracy rhetoric has become a rallying cry for rightsholders in Australia.
Husic accused the industry veteran of wanting to curate content available on search engines, having the economy and ISPs pick up the bill, while offering the public less choice. Only a change in business model will really solve the problem, Husic added, while urging caution over what further demands rightsholders will make, once the current ones are in the bank.
“I imagine at some point we’re going to have a debate in here about banning VPNs because they allow people to access content on other sides of the planet that aren’t able to be accessed here. At what point do we see the rights holders make that argument? I wouldn’t be surprised if we see it soon,” Husic warned.