infoJustice

I am spending this week in Lisbon for the Creative Commons 2019 Global Summit.  It has been a great few days of conversation, sharing, meeting new friends and exchanging ideas with friends new and old.

A lot of the focus in the copyright discussions has been on the enforcement provisions in the recently passed EU Directive. However, it has been clear during many of my discussions that a recent Australian reform expanding the site blocking regime to search engines may have “slipped through to the keeper” (Australian slang for ‘we missed that one’, or ‘that one fell through the cracks’!).

Background to site blocking in Australia

Australia first introduced site blocking laws in 2015 with the Copyright Amendment (Online Infringement) Act 2015.  The law changed the Copyright Act’s enforcement provisions to allow copyright owners and exclusive licensees to obtain injunctions in relation to infringing websites that were hosted offshore. Rights holders would need to bring ordinary infringement actions for infringing sites hosted in Australia. The site blocking scheme allows injunctions to be issued requiring internet service providers to block access to “an online location outside of Australia”.

The legislation deliberately targeted sites that were referred to in Parliamentary debates as the “worst of the worst” – ie, sites that had the “primary purpose” of copyright infringement, or facilitating copyright infringement.  This was seen by many civil society and internet/consumer stakeholders as an important protection to ensure that websites that may have infringing content on them were not inadvertently caught by the site blocking scheme, and that injunctions would be directed to sites such as The Pirate Bay which had the primary (and some would argue sole) purpose of enabling the distribution of infringing content.

A detailed summary of the site blocking legislation and various stakeholder arguments raised during the debates is available here.

2018 amending legislation

In November 2018 the Australian Parliament passed the Copyright Amendment (Online Infringement) Bill 2018, which expands the scope of the original site blocking laws.  This Bill was introduced with very little public consultation. The Bill was introduced to the House of Representatives on 18 October, and debated and passed the House on 24 October.  It was introduced into the Senate on 12 November, after some concern from stakeholders was referred to a Senate Committee on 13 November. Submissions to the Committee’s enquiry were due on 20 November.  The Committee did not hold public hearings. The Bill passed both Houses of Parliament on 28 November. It became law on 10 December 2018.

The Senate Committee that examined the Bill issued a report which contains a summary of the provisions, and stakeholder concerns in relation to the expanded scheme.  The Committee noted [2.40]:

The committee is of the view that the amendments proposed by the bill are likely to improve the operation of the injunctive scheme in section 115A of the Copyright Act, and represent a measured and proportionate response to concerns identified by stakeholders in relation to the operation of that scheme. In this respect, the committee also notes that the majority of submissions received by the committee supported the bill and recommended that it be passed unamended.

The Bill made 4 main changes to the original site blocking scheme:

1. Expanded the class of websites that can be subject to a site blocking injunction from those that have the “primary purpose” of infringement, or facilitating infringement, to those that have the “primary purpose or primary effect” of infringement or facilitating infringement.
   
2. Included a rebuttable presumption that websites are located outside of Australia, to reduce the evidentiary burden on copyright owners in seeking site blocking injunctions.
   
3. Introduced a system to solve what has been called the “whack-a-mole problem” (ie, when a site that is blocked pops up again at a different location but otherwise is an identical website to the site subject to the original order).  The Federal Court is now able to make orders that allow the copyright owner and ISP to agree to apply an injunction to block other domain names, URLs and IP addresses that start to provide access to the online location after the original injunction is made.
   
4. Expand the site blocking scheme to search engines.  Australia’s site blocking laws now enable copyright owners to seek injunctions requiring online search engine providers to take such steps as the Federal Court considers reasonable not to provide search results that refer users to blocked online location.

This enables rights holders to seek injunctions for search engines to filter websites from search results – those that have the primary purpose or primary effect of copyright infringement, or facilitating copyright infringement.

It remains to be seen what the impact of this law will be in Australia, where the scope of what is “infringing” can be far broader than in countries with more liberal exceptions provisions such as the US, Canada, Singapore, Israel.  For example, Australia does not have an exception which clearly covers the type of copying involved in cloud computing. As such, it is rguable that sites such as Dropbox, Google Drive or Flickr could be seen to facilitate copyright infringement (although it is important to note that the site blocking laws contain a number of factors that a court must consider before issuing an injunction, that in my view make it unlikely that an injunction would be issued against a site such as Dropbox.  Although this is not beyond doubt).

It does highlight the careful thought that is required when linking enforcement provisions to the concept of “infringement”  in the absence of a robust exceptions regime.

In considering likely responses to the recent EU Copyright Directive in various jurisdictions, it is important to keep in mind that ‘search blocking’ is already part of the law in Australia.

Carolyn Hough
Executive Director – Policy Australia Pty Ltd
Director and co-founder – Eloquium Group Pty Ltd