The steamroller that is the copyright enforcement machine continues to trundle along around the world, flattening obstacles such as fair use, privacy and freedom of expression in its path. One of its latest stops has been in Australia, where that country’s copyright site-blocking laws, first seriously mooted last year, were introduced into the Australian Federal Parliament last month. A public comment period on the legislation, the Copyright Amendment (Online Infringement) Bill 2015, closed two weeks ago, and EFF was amongst 49 experts, organizations and government departments who submitted comments.
In our submission we explained that:
censoring content from the Internet through blocking or filtering is never the best approach to take in managing illegal behavior online, and that it is always much better to address such behavior at its source. Any blocking or filtering of content runs the risk of being over-extensive or under-extensive (frequently both at once), and more fundamentally, runs against the Internet's essential value as an open platform for free expression.
The proposed law targets Internet services (including, but not limited to websites) hosted overseas, the primary purpose of which is to infringe copyright or to facilitate an infringement. Although it would require a court to approve the blocks—which is one of the minimum requirements of the Manila Principles on Intermediary Liability—it includes a number of other elements that fall short, both in terms of the process for obtaining a blocking order, as well as the substantive grounds on which blocks can be approved.
Starting with the process, in most cases there will be nobody to argue against an order to block a foreign site. This is because foreign hosts have no absolute right to be heard when their site is slated for blocking—and even if the court does allow them to be heard, the costs of securing representation will be prohibitive for all but a minority of overseas websites and services. As such, a court is almost certain to hear one side of the story, which in turn is likely to lead to sites being wrongly blocked.
As to the substantive grounds on which blocking can be sought, the proposed law is very vague. It allows not only sites that infringe copyright to be blocked, but also those that “facilitate the infringement of copyright”—or have the “primary purpose” of doing so. EFF was amongst several parties to the consultation—including Australia’s leading consumer organization Choice, as well as Google, and even Australia’s competition regulator the ACCC, who noted the danger that this would pose for operators of Virtual Private Network (VPN) services, some of whom specifically market their services for their ability to access blocked or geoblocked content.
Another example of the Bill’s dangerously vague scope are the criteria that a court is supposed to have regard to when determining whether to block a site. These include whether the owner or operator of the online location “demonstrates a disregard for copyright generally” (which seems to include those who conscientiously object to copyright, such as Leo Tolstoy and Woody Guthrie), whether the site makes available indexes of information that could facilitate copyright infringement (which might include sites like doom9.net that provide indexes of information on ripping DVDs), and whether any other country has made a copyright blocking order against the site (even if those countries have a much weaker legal standard for making blocking orders than Australia does).
Other voices against the Bill
As noted above, numerous other organizations joined EFF in its criticism of this bill for its restriction of access to knowledge and its chilling effect on speech. The Queensland University of Technology Intellectual property law and innovation research group, considered the bill insufficient to safeguard the public interest of access to legitimate information, saying:
If we have learnt anything from the last two decades of the ‘copyright wars’, it is that the best way to tackle copyright infringement is by satisfying the public’s demand for content in accessible, convenient, and affordable channels. Until the Australian market is better served by foreign rightsholders, increasing the severity of copyright law is only likely to be counterproductive.
The Australian Communications Consumer Action Network focused attention on the cost of implementing the Bill, which it claimed would likely increase the cost of Internet access for consumers. Apart from the costs of implementing technological blocking, if any ISP were courageous enough to challenge an application for site blocking, they would have to pay legal costs, all in support of a site that wasn’t their own to begin with.
The Internet Society of Australia pointed out the Bill’s potential to enable legitimate content to be incorrectly blocked:
What appears as a single web-page might be one of hundreds or thousands of unrelated pages and entire websites served from a single physical or virtual web page server. If the phrase “online location” is interpreted to mean the server on which the content is located, and access to this machine is blocked, then all the other unrelated sites and web content will be blocked as well, causing significant unintended ‘collateral damage’.
Some also pointed out how one-sided the calls are. The Australian Libraries Copyright Committee mentioned how the copyright enforcement agenda is proceeding even while outstanding copyright reforms, including the inability of university libraries to make copies of DVDs for hearing-impaired students without incurring criminal liability, remain unaddressed. Similarly the opposition Labor party, which holds the power to block the reforms, has raised the possibility that the site-blocking powers could be combined with provisions that facilitate the lawful use of content—such as a long-called-for fair use right in Australian copyright law.
For our part, although a fair use right is long overdue, we do not accept this Internet censorship law as a fair price to pay for that right. Once censorship is allowed on one corner of the Internet, it is inclined to spread insidiously, and so already appears to be the case in Australia, with calls already being made to extend the new blocking regime to cover legal pornography.
The government should listen to the voices of users expressed in its public consultation, and withdraw the Bill, just as the previous government abandoned a previous Internet censorship law in 2012. Failing this, there remains a chance that the Bill could be blocked in the Senate if Australians bring enough pressure to bear on opposition party and independent senators, and do so quickly. With mandatory data retention laws already having passed this year, there has never been greater urgency for Australians to stand up and stop the copyright enforcement juggernaut.