Michelle Rowland (Greenway, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | Hansard source

I am pleased to have the opportunity to speak on the Copyright Amendment (Online Infringement) Bill 2015 and to support the amendment circulated by the Shadow Attorney-General. In particular, I think that the substance of the amendment that has been moved goes to the heart of many of the submissions that were made to the Senate inquiry into the bill and addresses factors that contribute to behaviour and breaches of copyright in the first place that are useful to discuss in this context. Make no mistake, this is a vexed area. It is vexed in terms of not only a legal perspective but also a policy perspective, there is no question about that.

In making some observations on the bill, I want to touch on its rationale, on Labor's approach, on the importance of protecting consumers, on some concerns that my constituents have raised with me and on some of the misconstruing surrounding this bill. I also want to redress what I might describe as push factors for online piracy in the first place. Last night when I was giving some comments on the report by the House of Representatives Standing Committee on Infrastructure and Communications into section 313 of the Telecommunications Act, I foreshadowed that one thing that often seems to be missing from debates around these areas of site blocking and copyright is a focus on consumers. I think it is really important to bring it back precisely to that point.

One article that has stuck in my mind for a couple of years was by Zack Whittaker from 10 January 2011. I believe it has been published on ZDNet since. It is headed 'Why young people pirate (pssst: it's not just about money)'. It asks very valid questions that go to the whole issue of why people and, in particular, young people do pirate. This was written from a UK perspective, but I think the principles remain the same. This article asked the questions: is it just a lack of available regional content between the US and Europe, or is it just all about the money? He makes some statements that I think are valid more than four years later in the context of this debate. It would be a lie to say that money was not a significant factor for young people and students alike. But to collate and understand why young people pirate boils down to one easy, summarising statement: the legal options are not as readily available, simple enough or consistent enough to access. It really is as simple as that.

It is important to look at this in the context of Australia today. One aspect that is useful in this regard is a survey that was published by Choice in December last year. Their piracy survey shows that most pirates are actually willing to pay for content. It notes that one-third of Australians have illegally accessed online content. Some of the key survey findings are that 50 per cent of pirates said that their main reason for pirating was price and 41 per cent said it was because they wanted specific content sooner than available in Australia. For a staggering 91 per cent of those pirating, their rationale or main reason is either price or availability. I am not proposing, and I think it would be absurd to propose, that the law should and can address these areas. But the fact that the Choice survey shows most consumers—55 per cent—try to use legal sources first before searching out pirated copies of content does indicate that there is an issue in the market here.

On that point, I believe that it is important for the government to pick up the recommendations made in the report from July 2013 At what cost? IT pricing and the Australia tax, which had a very sensible list of recommendations that are worth exploring. I will just go to one of them, recommendation No. 6. It does not propose a legislative change, but it does propose that the government investigate options to educate Australian consumers and businesses on matters such as the extent to which they may circumvent geoblocking mechanisms in order to access cheaper legitimate goods, the tools and techniques which they may use to do so and the way in which their rights under the Australian Consumer Law may be affected should they choose to do so.

I want to consider some of the submissions that were made to the Senate committee. There were 49 submissions in all. When you look at the list of submitters, these are all very knowledgeable groups in their own areas. I want to take a sample because, although some of these are contrary to one another, they do illustrate the point that I have been making that access to content in an affordable and timely manner is a key issue in circumventing breaches. Like many members, I received a large number of emails which were accessed through the Choice website. I want to acknowledge the constituents who went to the trouble of looking this up and sending me an email on this, often with additional comments. I have here a request to vote against this bill, but there is also a statement: 'If you won't vote against the bill, then I ask you to make sure that it won't accidentally captured legitimate websites including VPNs.'

It urges me to have a look at the Choice submission that was made to the inquiry, and I want those constituents to know that I have duly done that. It was very useful because, as pointed out in the introduction to its submission, Choice believes that the bill is unlikely to reduce access to sites facilitating online infringement and even less likely to reduce the rates of online infringement. Even if you disagree with that point, they then make a point that I think is quite valid, and I go back to the 2011 article that I previously quoted: Choice's research has consistently shown that consumers in Australia pay more for identical digital products than consumers in comparable markets such as the USA or United Kingdom. Providing Australians with better access to digital content at a comparatively reasonable price will give consumers a greater incentive and opportunity to access content legitimately. Indeed, it goes to the very issue of the IT pricing inquiry that I mentioned. We think it is unfortunate that this approach—that is, this bill—favours a heavy-handed legislative approach ahead of market based reforms such as those recommended by the House of Representatives inquiry into IT pricing and also the recent final report of the federal government's competition policy review. Again, I make the point that timely and affordable content is paramount in this case.

A different submission is that of Screen Producers Australia. I acknowledge Screen Producers Australia, who have been hosting a number of events in Parliament House over the past few days. As is the case with the member for Melbourne Ports and the member for Moreton, the screen is one of my great loves. I was previously the chair of Screen New South Wales. It was a position not only that I enjoyed immensely but that taught me a great deal about the way our creative industries support people in my electorate—an electorate you would not normally consider to be one that would benefit from these industries—everything from the catering to the logistics and to the minds of the people creating content that certainly should be protected. So, I want to acknowledge Screen Producers Australia. Their submission notes:

As representatives of intellectual property creators, Screen Producers Australia strongly supports initiatives that will reduce the incidence of online copyright infringement and we offer in principle support to the proposed amendments in this Bill.

Screen Producers Australia believes that these amendments, along with a Copyright Notice Scheme, will form an important part of a holistic strategy, one that includes public education, promotion of legal alternatives and a pathway to stronger enforcement. It is the view of many rights holder groups that similar site blocking measures have been adopted overseas and have had a positive impact.

Indeed, I take particular note of their point about it being a holistic strategy. Not only legislative means such as this but also other means of ensuring that Australians have access to timely and affordable content will go a long way towards that.

Screen Producers Australia refers some of its substantive comments to the Australian Copyright Council, a very reputable organisation founded in 1968. Whilst they say that they support the government's strategy to address online copyright infringement, they wanted to raise a number of operational features of the bill. One of them that stands out is the definition of online location. They point out that infringing websites can indeed pop up at different domain names, and some of the other submissions I have looked at raised this very issue as well. They point out that the term 'online location' may be broad enough for an injunction to cover replicas of the same infringing website that pop up at different domains. And I think they make a very valid point, that settling this is crucial for the legislation to be effective. So, how this is administered in practice will certainly be extremely important.

A submission like that of Electronic Frontier Foundation takes an intensely different view. But, again, they do point out the importance of giving consumers timely and comparatively affordable access to content:

EFF believes that censoring content from the Internet through blocking or filtering is never the best approach to take in managing illegal behaviour online, and that it is always much better to address such behaviour at its source.

I believe that here they are going to the issue of behaviour: why are people pirating? It goes back to those very issues I mentioned.

In the time left to me I want to point out that the government has not yet responded to the ALRC report. In July last year the Attorney-General and the Minister for Communications released a discussion paper about online copyright infringement, which included a number of proposals. The bill we are debating takes up the second proposal, which looks at introducing mechanisms for blocking infringing sites. My understanding from the research I have seen is that Australia, unfortunately, has a high level of piracy by international standards, and it does have an economic impact, it does have an impact on jobs and it does have an impact on the sector. And the effects flow on to many other areas of the sector. We on this side of the House support reasonable measures to discourage piracy. We believe action is needed to reduce current levels of online piracy and that the enforcement of copyright law is vital to our creative industries.

So, we do support this bill, which, as the shadow Attorney-General has pointed out, is modest. It is a common-sense measure. It is intended to disrupt foreign websites operating as havens for piracy and to discourage copyright infringement by Australian consumers. To quote the shadow minister for communications and the shadow Attorney-General last year:

It is clear that action is needed both to deter piracy, and to encourage access to legitimate content.

We made it clear that there are concerns regarding the effectiveness of site blocking when dealing with online piracy, and we noted that pirated content is likely to reappear as quickly as it can be taken down.

As I have said, this bill will certainly not completely solve the problem of piracy in Australia, but it is appropriate to take action against websites that flagrantly and intentionally flout the copyright law. This bill is directed at foreign websites whose primary purpose is to infringe copyright or facilitate the infringement of copyright. It is hoped that disrupting this kind of website will discourage at least some copyright infringement in Australia.

I note that the shadow Attorney-General in his remarks this evening made comments on what the bill does not do, and I think it is important to highlight where this bill draws the line. This bill does not provide for a sort of internet filter. It provides a judicial remedy on a case-by-case basis for conduct that flouts existing Australian law. The requirements of the bill are strict, and we can expect Federal Court judges to exercise the site-blocking power cautiously and with restraint. And I am conscious, as I indicated, because of a number of constituents who contacted me—and according to that Choice website over 5,000 such emails were sent to various members of parliament around Australia—that some members of the community and my own constituency are concerned that the bill might allow the blocking of virtual private networks, or VPNs. We have made sure that this is not the case. Our senators on the Senate committee investigated this matter and are satisfied that the bill's terms would not extend to blocking VPNusage. However, we have asked the government—and I think it is a reasonable request and my understanding from the Attorney-General is that it has been agreed to—to put this matter beyond doubt by amending the explanatory memorandum to clarify this.

I think it is important that, while we do have this bill, we need to ensure that timely and comparatively affordable content is made available to all Australians.

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