Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I have one or two very quick questions. I think by now the scope of the bill is more or less broadly understood. Senator Fierravanti-Wells, I recognise that you are here representing a minister and that this might have been handballed to you at the last minute, although I recognise some of the Attorney's advisers in the chamber. I am interested to know who the minister consulted with in the drafting of this bill. When this came up during estimates committee hearings going back all the way to the beginning of last year, it was very evident that the minister had an open door for Village Roadshow, AFACT, which has since changed its name, and big foreign rights holders but had not bothered to meet with Choice, the Australian Digital Alliance, ACCAN or anybody else who might actually represent the rest of us, either from an artist's point of view or from a user's point of view. Are you able to either correct the record or update us as to whether Senator Brandis condescended to meet anybody other than the rights holders?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

Thank you, Senator Ludlam. I am advised that carriage service providers were part of an extensive consultation process on an online copyright discussion paper concluding in September 2014 with key stakeholders. The discussion paper included a proposal to introduce an injunction power to block access to foreign based infringing websites. Many CSPs submitted detailed comments on the proposal and, as a result of that process, the provision was drafted to take into account those comments. I would also mention that any court must first find that the primary purpose of the online location is to infringe or to facilitate infringement of copyright and that a court can further consider a number of other relevant factors, including the interests of any person likely to be affected, such as the CSP, in consideration of its deliberations.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that quite helpful answer. I understand that the minister has met with the rights holders—I do not know if it was the minister directly—and that at least senior members of the A-G's department and others have heard the views of CSPs, so we have the intermediaries taken care of but not the consumers, the end-users or the artists. Presumably, we have the rights holders speaking for the artists—I would contest whether they are actually doing that, in a lot of instances, but we will let that one go through to the keeper—we have the carriage-service providers who are providing the business in a service and, from time to time, some more than others, they stepped up and argued for the public interest. But they are a business. They are trying to protect their industry.

At any time, have the minister or senior members of the A-G's department or anybody you would care to name—I find the word 'consumers' loathsome but I am looking for it—met with ordinary Australians or users or their advocates, such as the organisations I mentioned before? The three that come to mind are: the Australian Digital Alliance, who made extensive submissions on this bill; CHOICE, who are one of the leading consumer-rights advocates in the country; and ACCAN, the peak body that the former government set up and that has been quite active in this space. I understand the intermediaries have certainly had their views well understood. What about the public?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that there was extensive consultation. I also understand that through the Senate committee process there were extensive submissions, including from groups you have mentioned. That is my understanding.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I am not going to labour the point here. You are quite right, the Senate committee did take quite strong evidence from the groups that I named and from a number of others who strenuously opposed the bill and proposed amendments that the government does not appear to be very interested in, but by the time it gets to the Senate committee the government has already made up its mind. It is certainly out there looking, potentially, at amendments but the model has already been set—that we are going to get a site-blocking regime.

Can I take from your answers that either senior officers of the Attorney-General's Department or the minister himself had not met with any of those rights organisations that I mentioned before?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that during the online-consideration process over 700 individuals responded. I make the point that we accept consumer groups and individuals have raised concerns about the proposal, in response to the 2014 discussion paper. I am advised that the bill has been drafted to ensure that there are more safeguards and to address some of the concerns that have been raised. For example, the court now has the ability to consider a wide range of factors before granting an injunction; these include whether the order is in the public interest.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I think I have made my point. Unless other senators have any general questions regarding the operations of the bill, I will start moving through the Australian Greens amendments. We are working from sheet 7710. Amendment (1) deals with avoiding geoblocking. In a nutshell, it proposes to amend the Copyright Act to explicitly state that evading geoblocking is not copyright infringement.

Minister, I think you addressed this in your closing comments, just before you closed the second reading debate, which I was glad to hear. Key figures on your side—through you, Temporary Chairman—of politics and also from the Labor side have stated that they believe avoiding geoblocking is legal. That was made pretty black and white in the IT pricing inquiry, but the bill is currently unclear on this and needs to be cleared up and made black and white.

The amendment will make it quite explicit that avoiding geoblocking is not any kind of offence. We can go some way towards educating Australians on how to avoid geoblocking, which was another recommendation of the IT price-hike inquiry. I will give the government the benefit of the doubt on this, and Minister Turnbull has mentioned this a couple of times, that they do not appear to want to criminalise geoblocking. So why would they pass a bill that could conceivably be interpreted as doing that?

I hope this amendment will see favour with one or both sides of politics. I suspect that when government and opposition spokespeople speak to the amendment they will profess to support it, in spirit, but will not vote for it in the letter of the law, and that is a rather poor way of legislating. So I am looking for a reading from the opposition or the government as to whether they (a) support the principle, and (b) would support it going into the act.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Ludlam. Sheet 7710 that you referred to, has nine different matters. Are you proceeding with them individually?

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Yes.

The TEMPORARY CHAIRMAN: This is just the first matter. Have you moved it?

Yes, I am happy to move it and I am hoping to get a read from somebody else. I move:

(1) Schedule 1, page 3 (before line 4), before item 1, insert:

1A At the end of Part III

  Add:

Division 10—Geoblocking avoidance facilities

83A Geoblocking avoidance facilities

     In this Division:

geoblocking avoidance facility means a device, product, technology or component (including a computer program) that is used in Australia to control, disguise or block the geographical location of a person or device.For the purposes of this definition, computer program has the same meaning as in section 47AB.

83B Provision, offer or use of geoblocking avoidance facility does not constitute infringement

(1) If a person either:

  (a) provides a geoblocking avoidance facility to another person; or

  (b) offers a geoblocking avoidance facility to the public;

then, despite any other provision of this Act, the person does not infringe any copyright under this Part merely by providing or offering the geoblocking avoidance facility.

(2) Despite any other provision of this Act, a person does not infringe any copyright under this Part merely by using a geoblocking avoidance facility.

1B After Division 6 of Part IV

  Insert:

Division 6A—Geoblocking avoidance facilities

112F Geoblocking avoidance facilities

     In this Division:

  geoblocking avoidance facility means a device, product, technology or component (including a computer program) that is used in Australia to control, disguise or block the geographical location of a person or device.For the purposes of this definition, computer program has the same meaning as in section 47AB.

112G Provision, offer or use of geoblocking avoidance facility does not constitute infringement

(1) If a person either:

  (a) provides a geoblocking avoidance facility to another person; or

  (b) offers a geoblocking avoidance facility to the public;

then, despite any other provision of this Act, the person does not infringe any copyright under this Part merely by providing or offering the geoblocking avoidance facility.

(2) Despite any other provision of this Act, a person does not infringe any copyright under this Part merely by using a geoblocking avoidance facility.

The TEMPORARY CHAIRMAN: Senator Collins?

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

This bill is not, as the Greens keep insisting, concerned with geoblocking. As the communications minister pointed out and as the Attorney-General's Department has previously advised committees of this parliament, general geoblocking practices are not protected as technological protection measures under the Copyright Act. As a consequence, these amendments are not necessary.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I unfortunately missed the call before Senator Ludlam started moving his amendments. I did want to raise some issues in a more general nature. Perhaps I will come back to that later. Suffice to say in passing that the number of people who gave evidence to the committee is shown in the Legal and Constitutional Affairs Legislation Committee's report on this legislation, which I referred to in my second reading speech. At appendix 1 of the committee's report is a list of the public submissions that have been made—49 submissions, and many were called to give evidence. I note that some of the prominent groups that did give evidence or made submissions included the Communications Law Centre, the Australian Copyright Council, the Human Rights Commission, iiNet, the Institute of Public Affairs, the Australian Digital Alliance and Screen Producers Australia. Quite a number of people very closely—

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Temporary Chairman, I rise or a point of order. I wondered whether you could draw Senator Macdonald's attention to the question before the chair. It is an amendment on geoblocking.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I believe there is no point of order. Senator Macdonald was talking about the work of the committee in broad terms and I have no doubt he was getting to the issue of geoblocking.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Thank you, Mr Temporary Chairman. I appreciate that. As I indicated, I did want to speak on Senator Ludlam's amendment, but I missed the call, through no-one's fault except my own, I might say. I missed the call earlier, and I did want to raise some issues with the minister about that. I will do that later as time permits. The question of geoblocking, as Senator Collins very carefully and accurately pointed out, is not really relevant to this particular bill before us. We indeed took a lot of evidence from a lot of people. I was referring to some of them when Senator Ludlam interrupted me last time. I was trying to recall which of those who gave evidence actually referred to geoblocking and made the point that Senator Collins has already made. That came out in some of the submissions. I am looking through this list trying to recall, from the 49 submissions that were made, which of those actually made comments on geoblocking. I do note that, of those who made submissions, there were quite a number who did give evidence. The Hansard will record that some of them referred to the general policy issue that Senator Ludlam has raised in his amendment. I thank Senator Collins and Senator O'Sullivan for attending the committee hearings when these issues were raised. A number of people gave evidence before the committee and some of them, from my reading of the Hansard, did relate to this very important issue.

It is a fraction unfortunate, as I mentioned before, that Senator Ludlam, who got himself appointed to this committee so that he could share his expertise with the rest of the committee, was not able, for whatever reason—I am not sure—to attend the Sydney hearings of the committee where these particular issues could have been canvassed. Had Senator Ludlam attended that, the issues he raises in this amendment before the chair could have been fully canvassed at that time with people who are expert in the area. I know that the Attorney, whose bill this is, is a bit of an expert on those matters as well and he obviously has very good staff who are able to advise him. I know that Senator Fierravanti-Wells is, as some might call her, a modern person right up with these technical terms and is very expert in the bill as well. Clearly, it is unfortunate that Senator Brandis cannot be with us just at the moment to answer these questions. I make the point on the amendment that it is not protected; it is not what this bill was about.

I might leave it there and simply reinforce the point that Senator Collins has so well made. I will return at a later stage as the amendment process proceeds to a place where it will allow me to ask the more general questions I should have asked previously. Minister, I support Senator Collins' view on this. No doubt it is for the government to respond more formally, but it is not an issue for debate on this particular bill.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I echo the comments that Senator Collins made. This proposed amendment is not relevant to the bill. This bill is about access to infringement material and effective relief for right holders. It is really a matter for operators of sites to determine how to enforce their own site restrictions—for example, how and whether to prevent persons outside of a particular territory from accessing their contents.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 7710 in the name of Senator Ludlam be agreed to.

Question negatived.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will move to my second amendment, which I addressed in passing on my way through the second reading debate. Amendment (2) on sheet 7710 changes the definition of sites targeted by the bill to specify that the sites must be flagrantly infringing copyright. The intention of the amendment is to apply a higher test—a steeper threshold—by which the courts would assess whether a site was infringing copyright. The word 'flagrancy' has been used elsewhere in the bill; it is used extensively in the explanatory memorandum. But it is not a determination that the court will be making—as to whether a site is or is not flagrantly breaching copyright. The intention here, I hope, is reasonably transparent and clear to senators—that is, we are trying to minimise the risk of, effectively, collateral damage—given how broadly the term 'facilitating' may well be taken to be read in the context of this—to sites which have very little to do with copyright infringement but which may be caught up in this net; particularly once these sorts of court orders become routine. Once rights-holders get good at this and once ISPs have given up defending these actions in court, and once these orders become much more routine—which is, I fear, what may occur—we are going to need to maintain a very high threshold test for whether courts will knock websites over.

Currently, the bill would require courts to consider the flagrancy of the copyright infringement taking place on any specific website proposed to be blocked. However, it would not require the website to be flagrantly infringing copyright for it to be blocked. In other words, we are trying to strengthen the test against the risk of over-blocking by the filter. What our amendment does, specifically, is change the flagrancy requirement from being a consideration—that is, from being one of the things that the court should be required to keep in mind—to being the test that should be required and that should be foremost in the court's consideration. We believe that this is much easier for courts to consider because it sets a very simple threshold bar. If websites are flagrantly infringing copyright, they will meet the test. Even on a plain English reading of that word, it would, I think, give some of those who are opposed to the bill some comfort that it would only be narrowly targeted. If the website is not flagrantly infringing copyright, then it probably should not be knocked off the air by such a court order. That is the clarity of the test that we are trying to apply.

Senator Fierravanti-Wells, your briefing notes no doubt say that that is something that the courts would be required to bear in mind—it would be part of the criteria; it would be one of the things they are considering. We do not think it should be possible for a website that is not flagrantly infringing copyright to be, effectively, knocked off the net by an order of this type. That is why we are bringing this amendment forward.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

Thank you, Senator Ludlam. I want to take the opportunity to affirm that the primary purpose test within the bill ensures that the provisions contain a high threshold for a copyright owner to meet, as a safeguard against any potential abuse. I particularly direct you to section 115A, 'Injunctions against carriage service providers providing access to online locations outside Australia' and, in particular, I direct you to subclause (5), which I will come to in a moment.

The explanatory memorandum has provided a number of examples of online locations that are prima facie intended to be excluded from the operation of the new measure. These are: those operated mainly for a legitimate purpose but which may contain a small percentage of infringing content; an art gallery website operated outside Australia that may contain an authorised photograph; websites such as the www.youtube.com or www.blogger.com; and an online location operated overseas which provides legitimate copyright material to individuals within another geographic location but which is not licensed to distribute that copyright material in Australia—for example, the United States iTunes Store.

Can I take the Senate—and take you, Senator Ludlam—to the particular provision that I referred to, on matters to be taken into account by the court. In considering whether to grant the injunction, the court will be required under this bill to take the following matters into account: the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement, as is referred to in paragraph 115A(1)(c), which states, 'the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia)'. The court will also be required to take into account whether the online location makes available or contains directories, indexes or categories of the means to infringe, or to facilitate an infringement of that copyright. The court can also take into account whether the owner or operator of the online location demonstrates a disregard for copyright generally. The court will also take into account whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement; whether disabling access to the online location is a proportionate response in the circumstances; and the impact on any person or class of persons likely to be affected by the grant of the injunction. The court can also consider whether it is in the public interest to disable access to the online location. It can also take into account whether the owner of the copyright complied with subsection (4). Subsection (4) states that—

Progress reported.