Patrick Dodson (WA, Australian Labor Party, Shadow Minister for Indigenous Affairs and Aboriginal and Torres Strait Islanders (Senate)) Share this | Link to this | Hansard source

I rise to speak to the Copyright Amendment (Online Infringement) Bill 2018. Labor will be supporting this bill because it makes a number of improvements to the existing regime for protecting the rights of artists and others whose livelihoods depend on them being paid for what they create, whether that's music, movies, television programs, books or any other form of intellectual property. Labor supports this bill because it will strengthen the current regime under which a court can make orders blocking access to websites that have the primary purpose or the primary effect of infringing copyright.

I should note, however, that we have been disappointed at the way the government initially handled this bill, which led to some stakeholders telling us that they were not adequately consulted or given the chance to enter meaningful dialogue with the government on the final version of the bill. To allow stakeholders with concerns about the changes to the site-blocking regime being made by this bill to be properly heard and their concerns considered, earlier this month Labor supported a crossbench motion for an inquiry into this bill by the Senate Environment and Communications Legislation Committee. The referral to the committee was made on 13 November 2018. The committee then advertised the inquiry on its website and wrote to relevant individuals and organisations inviting submissions. The committee did not hold a public hearing, but committee members carefully examined the 26 submissions received. I thank submitters for taking the time to write to the committee and I thank the committee members for their diligent work in reviewing those submissions and preparing a report, which was tabled on 26 November.

The committee's report details the concerns raised by some submitters and provides comprehensive responses to those concerned. Ultimately, the committee made the following two recommendations:

Recommendation 1

2.48 The committee recommends that the government review the effectiveness of the measures contained in the bill two years after its enactment.

Recommendation 2

2.49 The committee recommends that the Senate pass the bill.

Labor accepts both recommendations. We understand that the government has committed to review the effectiveness of the measures contained in the bill two years after its enactment, in accordance with the committee's first recommendation. Labor welcomes that commitment and will take this opportunity to say that, if there is a change of government at the next election, a Shorten Labor government would also carry out that recommendation and review the effectiveness of the measures contained in the bill after its enactment.

I turn now to what this bill will achieve. While the digital revolution has created enormous benefits for our society and economy, it has also been highly disruptive. The rapid expansion of online services has created many new challenges for law enforcement. But we in Labor do not believe the online world should be allowed to exist in a lawless frontier. To the contrary, we in Labor understand the importance of effective regulation in this area, whether it's to stop the selling of illegal weapons, to shut down the vile trade in child pornography, to prevent online radicalisation of Australians by terrorist groups or, as this bill does, to prevent the theft of intellectual property. This bill makes important improvements to the Copyright Act that will help ensure it continues to protect intellectual property rights in the digital age.

We in Labor recognise the vital importance of Australia's creative industries. Our musicians, our filmmakers, our television production industry and our artists all contribute enormously to our society in both economic and cultural terms. The stories Australians love the most are our stories—stories about our nation, our history, our people. Whether on television, on the big screen or in books, these stories are all produced by people who rely on copyright laws to protect their creative work. It is the copyright law that ensures those in our creative industry are paid for the work that they do. Chapter 9 of the Australian Labor Party's National Platform is titled 'A fair go for all'. At paragraph 300, the ALP sets out the importance of maintaining copyright in the following terms:

The legal framework of copyright is necessary to ensure the income generated by arts, culture and heritage is fairly distributed between the creators and the institutions and entrepreneurs who make it available. A successful copyright framework will support the education, arts, culture, and heritage of Australia by:

Our policy on copyright is consistent with our long-held view about the importance of arts and culture in our national life.

When last in government and over the last five years of opposition, Labor has been working to support sensible changes to our copyright laws to ensure that they remain fit for purpose in protecting our creative industries and our artists. One of the most significant threats to the music and screen industries since the advent of the internet has been the rise of online piracy, because online piracy undermines the capacity of creators, including musicians and screen industry professionals, to sell their work. To help reduce online piracy, in 2015 Labor worked with the government to introduce amendments to the Copyright Act 1968 that allow the courts to issue site-blocking orders that oblige carriage service providers to block access to identified pirate sites. These site-blocking injunctions can only be issued by a judge and only for websites outside of Australia whose primary purpose has been proven to be infringing copyright material. This regime, under section 115A of the Copyright Act, is necessary because many pirate sites operate in overseas jurisdictions with lax copyright laws. The pirate sites operating in these foreign jurisdictions are generally out of reach of Australian law enforcement, yet the damage these sites do to our creative industries and so to our economy is considerable.

Representatives of our creative industries and artists in Australia were very supportive of the regime introduced by section 115A, and since 2015 these reforms have been successfully used to block a number of pirate sites, with a measurable drop in the rate of online copyright infringements in Australia. However, rates of online copyright infringement in Australia remain high in contrast to comparable overseas jurisdictions and new forms of copyright infringement are always being developed as the digital world rapidly changes.

This bill responds to the ongoing challenge of online piracy by strengthening the site-blocking regime in section 115A of the Copyright Act. In summary, it will expand the services that can be subject to injunctions to include online search engine providers such as Google, in addition to carriage service providers such as Telstra, to compel the providers to take reasonable steps to not provide search results that direct users to copyright infringing websites. This measure is intended to reinforce the regime by ensuring that searches do not provide easy pathways to copyright infringing websites or to already blocked copyright infringing sites through alternative pathways and web addresses. It allows injunctions to be sought to block access to sites which have the primary purpose or primary effect of infringing or facilitating the infringement of copyright. This is a significant expansion of the scope of the site-blocking scheme, which has been limited to sites with the primary purpose only of infringing copyright. Stakeholders had been concerned that new websites such as cyberlocker sites are frequently used for copyright infringement through file sharing of music, movies and television shows, but it is difficult to prove that they exist for that purpose or that primary purpose, so they would fall outside the scheme. It is expected that the addition of a primary effects test will bring such sites within the scheme without unduly widening its scope.

This bill will also allow the court to issue more flexible injunctions that can be adopted to maintain a blocking order without the application having to return to court for a new injunction when pirate sites change address or access pathways. These adaptable injunctions will provide for the blocking of additional domain sites, IP addresses and search results by agreement with the copyright owners and service providers. This bill also helps to avoid wasteful and difficult evidentiary inquiries for applicants to establish the location of web hosting sites by putting in place a rebuttable presumption that an online location is outside Australia.

Finally, this bill includes a measure that will enable the minister, by disallowable instrument, to declare that particular onsite search engine providers or a class of those providers are exempted from the scheme. This last measure is essentially a safeguard to ensure that injunctions are directed only against the largest service providers facilitating the infringement of copyright.

Creative industry representatives in Australia that Labor has been consulting have already indicated support for the changes proposed in this bill. This includes our music and screen production industries. We know that the search engine providers have been actively involved in the battle against online piracy, and we trust that they will continue that battle. Although some companies and individuals have expressed concerns about the potential of this bill to be used inappropriately to shut down legitimate sites, we in Labor are satisfied that it contains sufficient safeguards to prevent its misuse. In particular, I point out that injunctions can only be issued in narrow circumstances by a Federal Court judge, with the onus of proof on the applicant seeking the injunction. In making a decision about whether to issue a site-blocking injunction, the judge must take into account a wide range of factors. Under subsection (5) of section 115A of the Copyright Act, the court may take the following matters, among others, into account:

(a) the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement …

…   …   …

(c) whether the owner or operator of the online location demonstrates a disregard for copyright generally;

(d) 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;

(e) whether disabling access to the online location is a proportionate response in the circumstances;

(f) the impact on any person, or class of persons, likely to be affected by the grant of the injunction;

(g) whether it is in the public interest to disable access to the online location;

…   …   …

(k) any other relevant matter.

Any decision by a judge to issue an order under section 115 is also subject to appeal.

As with all new legislative regimes, we in Labor are always ready to hear feedback from affected and interested parties about the way in which the regime is operating. If there are any unforeseen problems with the way in which the modifications to section 115A operate in practice, we will of course be willing to consider whether further changes should be made to that part of the Copyright Act to ensure it operates efficiently and effectively to reduce online piracy.

We in Labor are pleased that the protection of copyright is an area of bipartisan agreement. In the past, we have been concerned by some of the government's ill-considered announcements on policies that would roll back copyright protections, such as in relation to safe-harbour laws. However, Labor has stood with Australia's creative industries in opposition to the government's reckless plans to diminish copyright protections, and we were pleased to see that the government backed down on those proposals. Labor is pleased to see that the government has come around to understanding the importance of regulating to protect the rights of our artists and the economic viability and cultural values of our creative industries in the digital age. We support this bill as a means to further the importance of these objectives.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will be supporting this bill. In doing so, we'd like to make clear that we are strongly supportive of both creative and innovative industries in Australia. We recognise that these fields are increasingly overlapping as digital distribution becomes more and more prevalent, and this has created both opportunities and risks for creators and service providers alike. We will continue to work to ensure that the interests of both innovative and creative industries are protected. We do not believe that these things are mutually exclusive. These two industries are fundamental to our future as a country, and, the more we work to support and create protections, the more we are investing in jobs, particularly for young Australians into the future.

We suggest, in support of this bill, as we have contended in the past, that site blocking is not the most effective way of stopping piracy. Rather, copyright is most effectively addressed by making content available conveniently, affordably, and in a timely way. We have seen this happen with great effect with the popularity of Netflix in Australia and its subsequent downward influence on piracy rates. We acknowledge that, whilst the bill is intended to address doubts within the current scheme, unintended consequences of extending website blocking practices are a concern. And we will work to ensure that free speech and public discourse are not unduly affected.

Stirling Griff (SA, Centre Alliance) Share this | Link to this | Hansard source

Firstly, I would like to thank the Senate for supporting the referral of this bill, the Copyright Amendment (Online Infringement) Bill 2018, to the Environment and Communications Legislation Committee. I'm aware that some did not wish to see a delay in the passage of the bill, and I appreciate that the bill has been subject to some consultation in the past. However, my office was contacted by multiple stakeholders on this matter, and Centre Alliance felt it was inappropriate to proceed until all stakeholders had an opportunity to express their concerns as part of the short inquiry process, which has now been completed.

Copyright protection is a crucial mechanism that provides for the viability of Australia's creators and creative industries. In recent times, the increased use of the internet and access to copyright material through digital means has had a twofold effect. On the one hand, it has created more opportunities for copyright owners to get their creative content out into the public domain and it has allowed consumers to enjoy this content in new and very innovative ways. But, on the other hand, copyright infringement now poses a threat to copyright owners due to the emergence of a myriad of websites which contain infringing material and facilitate infringement of copyright.

By way of an example, in their submission to the inquiry, Village Roadshow documented the number of downloads of two Australian films which have been subsidised by the government's tax offset arrangements. In the statistics provided in their submission, the film Mad Max: Fury Road had 600,000 legal downloads and a staggering one million illegal downloads. The film Lion was downloaded some 710,000 times, with over half of that number being illegal downloads. These are staggering numbers. Both highlight the concerns and issues this bill sets out to address and exemplify the reason we need to protect copyright owners from threat of copyright infringement.

This bill proposes a number of amendments which would facilitate the protection of copyright material, such as with these two Australian films. The expansion of section 115A would allow an injunction to extend to both carriage service providers and online search engine providers to block or not provide access to locations which provide access to copyrighted material. By expanding the legislation to provide for more protection to copyright material, Australian films such as Mad Max: Fury Road and Lion will be further protected from illegal downloads.

Many submissions to the inquiry expressed concerns that the proposed changes to the legislation and the widening of section 115A to include a 'primary effect' test could result in the site blocking of online locations which are operating very much for legitimate purposes. There were also a number of submissions drawing attention to the ability of carriage service providers and search engine providers to extend the sites blocked under the bill without any further judicial oversight.

Having reviewed the submissions both in support of and in opposition to the passage of the bill, we found the arguments were evenly balanced. This is not to say that those arguments do not have some merit, as this legislation is certainly not perfect, but I believe there are adequate safeguards in this bill that would prevent section 115A being applied to locations which are operated for legitimate purposes. Centre Alliance was initially going to put forward an amendment to have the operation of these amendments reviewed after 24 months, particularly given the number of concerns which were expressed during the inquiry. We felt that this would be the best way to review the effectiveness of the measures outlined in this bill to see whether any adverse consequences had emerged as a result of the broadening of the legislation. However, we have been informed that the government is committed to a review of this legislation, and we're happy to support this and support passage of the bill in its current form on the basis that the government commits to a review in 24 months time.

Mitch Fifield (Victoria, Liberal Party, Minister for Communications and the Arts) Share this | Link to this | Hansard source

Thank you, colleagues, for your contributions to this debate on the Copyright Amendment (Online Infringement) Bill 2018. The purpose of this bill is to further modernise Australia's copyright laws. The bill will ensure that website blocking remains an effective means for copyright owners to address large-scale copyright infringement by overseas operators. Together with small business tax relief and location incentives, these changes will help our creative industries to produce Australian content and tell Australian stories. They will also support investments that have made it possible for Australians to enjoy their favourite films, TV shows and music where and when they want.

I'd like to thank all the stakeholders who were consulted on the exposure draft of this bill and also those who participated in the Senate Environment and Communications Legislation Committee's inquiry into the bill. The government did carefully consider the comments and matters from stakeholders and made numerous adjustments to the bill prior to its introduction into the other place. Some expressed concern about the cost and difficulty of establishing that an infringing website is located overseas. In a global internet environment, proving that an online location is physically outside Australia is a very high threshold, given the use of proxy servers and other devices to mask locations. To address this concern, the bill includes an evidential presumption that an online location is outside Australia unless proven otherwise.

Concern was also expressed that copyright owners could dictate the blocking of an open-ended list of URLs, domain names or IP addresses without agreement of carriage service providers or online search engine providers. That is not the government's intention with this bill, and a provision was included—subsection 115A(2B)—that confirms that the Federal Court may grant an injunction that allows the blocking of future domain names, URLs and IP addresses on the condition that there is written agreement between the parties. This is consistent with orders that have been made by the court to date that explicitly provide for certain steps to be agreed in writing between the parties.

As noted in the Senate committee inquiry report, the measures are appropriately circumscribed, with the court maintaining ultimate oversight over these types of injunctions, including the requirement that there be evidence of a sufficient nexus between the online location covered by the original injunction and the location to which the order is expanded. Some stakeholders suggested that 'online search engine provider' should be defined. Doing so would be problematic and would risk locking into legislation a definition that is rendered redundant by the fast-moving changes underway in the technology sector. Instead, the bill has been amended to provide the minister with a power to exclude certain online search engine providers from the website-blocking provisions.

The Senate Scrutiny of Bills Committee queried the justification for this power, noting that significant matters such as the specification of providers that are to be exempted from an injunctive scheme should be included in primary legislation. As noted in the government response to the Senate Scrutiny of Bills Committee, there is adequate justification for this power. This measure provides a more flexible way of dealing with the potential, although small, that an injunction is brought against a party to which these provisions were not intended to apply. Although this power is unlikely to be used, it provides an important safeguard to discourage overreach by copyright owners.

The extension of the scheme to include online search engine providers is an important measure that will improve the effectiveness of the scheme. As noted in the Senate committee inquiry report, a measure of this type is appropriate given that these providers play a significant role in both the infringement and the enforcement of copyright. They are part of the problem as well as the solution. Some also expressed concern about the primary purpose or primary effect test—that it would enable sites such as Pinterest and Google Translate to be captured by a copyright-blocking injunction. This is highly unlikely to occur, particularly as the court may consider, under subsection 115A(5), a number of factors when determining whether to grant an injunction, including proportionality and public interest. It's difficult to imagine that legitimate websites with other purposes or effects, such as social media websites and translation websites, would satisfy this test. Nonetheless, the bill was adjusted to include a cross-reference to subsection 115A(5) to make clear that this is relevant to the Federal Court's considerations in determining whether to grant injunctions. The Senate committee inquiry report also concluded that there are adequate safeguards in section 115A, including as amended, to ensure that unintended consequences, such as it extending to legitimate sites, would not occur in practice.

There were also a range of concerns raised that did not warrant amendments to the bill. Some stakeholders argued that wording changes in subsection 115A(1) from 'reasonable steps' to 'such steps as the court considers reasonable to disable access' would lead to the court ordering inappropriate steps. But this change, which is intended to clarify that the court has the discretion to set the terms of the reasonable steps, is merely reflective of how the court has applied the test to date. In effect, the revised provision will continue to operate as it currently does in practice. Some were concerned that the primary effect test would increase the risk of carriage service providers being liable for costs in proceedings. Some also asked for subsection 115A(9) to be amended to provided that carriage service providers are not liable for costs even if they take part in proceedings. This is not an amendment the government supports. The Federal Court is best placed to decide on issues such as the awarding of costs, and it would not be appropriate to override or fetter this discretion. Some argued that copyright infringements are being effectively dealt with through voluntary actions to block and reduce access to infringing sites and that injunctions are therefore unnecessary. The government welcomes efforts by some players, including Google, to voluntarily curb access to copyright-infringing sites. This is a positive development and is entirely consistent with the government's overall approach to copyright. However, voluntary measures are just that; they're voluntary. The website-blocking scheme simply provides a fallback if voluntary measures prove to be insufficient or are not implemented broadly across the industry.

As noted earlier, the Senate committee inquiry considered submissions from a broad range of copyright owners, carriage service providers, digital platforms and digital rights groups. The committee concluded that, on balance, the benefits of the bill outweigh any potential negative impacts that could arise. The committee also recommended that the government review the effectiveness of the measures contained in the bill two years after its enactment. This is a sensible proposition and one that the government supports. A review of the operation of the copyright website-blocking scheme will be conducted within two years of the commencement of the bill, and the findings and recommendations of that review will be made public.

This bill is an important reform to Australia's copyright framework that will ensure that the Australian creative sector can continue to invest in quality content and stories. I thank colleagues across the chamber for their support for this legislation. I particularly acknowledge the positive and constructive approach that Mr Mark Dreyfus, the shadow Attorney-General, has taken in relation to this matter, and I do want to acknowledge that in copyright matters in general Mr Dreyfus has been a good colleague to work with. I also acknowledge Senator Griff and his positive contribution on behalf of Centre Alliance and also Senator Hanson-Young, who has also been very supportive of sensible changes to copyright legislation, particularly this piece of legislation before us.

Before I commend the bill to colleagues, I do note that Senator Hanson-Young was on the speaker's list but was not in a position, I believe, to make her contribution at the time I got the call for the summing up. So, Mr Acting Deputy President, assuming she wishes to make a contribution, it's in the hands of the chamber as to whether that is possible after the minister has spoken or whether that is best made in the committee stage.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

We could allow Senator Hanson-Young to speak now and then we could put the question on the second reading at the conclusion, if that suits you.

Mitch Fifield (Victoria, Liberal Party, Minister for Communications and the Arts) Share this | Link to this | Hansard source

It's in the hands of the chamber as to what is possible.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Senator Hanson-Young, do you wish to speak?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Yes. Thank you, Mr Acting Deputy President Leyonhjelm, and thank you to the minister for giving me some space to put on the record my contribution. I'll keep it brief.

We know what the purpose of this bill, the Copyright Amendment (Online Infringement) Bill 2018, is: it is to ensure Australian artists are given due credit and payment for their work and to protect them from having their work stolen, pirated or abused. It will do this by targeting those who intend to steal their work online. We know that, while many Australian artists have had to adapt to the new world order of the digital revolution, they've done so having to back themselves, often taking the risk financially without knowing exactly how it was going to pay off. Over recent years, we've seen Australian artists starting to do more and more engagement with the digital world and grapple with the issues of copyright but also do more in how they reach audiences and build a reputation and support from those online audiences as well. This bill, notwithstanding the comments put on the record by my colleague Senator Steele-John, will go some way to ensuring that artists, particularly small and independent artists, can have at least an avenue to protect their work if, indeed, it is stolen or there is an infringement of copyright use that undermines their ability to get paid.

We want to see Australian artists supported more and more. This bill creates a pathway for artists and creators to have their rights protected, but we need to do more than this to ensure that Australian artists are given strong policy backing in this country. That's one of the reasons the Greens strongly believe, in a creative Australia, we need a creativity commission—an agency in Australia that would underpin and support Australian artists and the ability of creativity to permeate across all sections of the economy and society. We believe, fundamentally, in the ability of the arts, of creativity, to improve all of our lives. We believe that our culture is made richer through the contribution of creative endeavours. We believe that artists have the right to have their work protected. That includes, of course, artists who work offline and also artists who work fundamentally and predominantly in an online and digital space. They too need to be respected and recognised for the amazing contribution that they give to innovation in this country.

We pride ourselves on developing and advocating for strong policies to support creative Australia. That's why we've been leading an inquiry into Australian content creation, ensuring that Australian stories are promoted and supported through the various different platforms, whether that's traditional broadcast or platforms online or, indeed, even radio. I note that today is the Australian music awards, the ARIA awards, where, for the first time in a long time, the majority of nominees up for awards are Australian artists who are coming back to Australia and investing back into the Australian creative environment. Having their work recognised through those awards will be a great thing to see happen this evening. I just want to say: well done to all the nominees today, and congratulations to those who ultimately win those awards as they're announced later on tonight.

A creativity commission would give Australian artists and creators the ability to have their contribution to the economy and to society recognised. We have a Productivity Commission, we have the CSIRO, we have the Human Rights Commission—all different areas which we understand deserve special recognition in a variety of ways. We have the Productivity Commission, we have the CSIRO, we have the Human Rights Commission—all different areas which we understand deserve special recognition in a variety of ways. It is time that Australian artists and creators also have the backing of a government funded agency that upholds and promotes the benefits of creativity to our entire community, economy and society. That is something I'll be pushing for very strongly over the coming months and I look forward to discussions on both sides of the chamber as to how we can ensure that Australian artists and creators, in the online and offline environment, can be supported better and wholeheartedly by all sides of politics and all sides of the chamber.

Question agreed to.

Bill read a second time.