Tuesday 18 February 2014

Australia's copyright reform agenda: exceptions, graduated response & site blocking?

At the Australian Digital Alliance's annual Forum last Friday (disclosure: this blogger is an ADA board director), Attorney-General Senator the Hon George Brandis gave a wide-ranging speech that covered some of the recommendations proposed in the ALRC Report (which we discussed here) as well as other copyright policy concerns.

The Attorney-General argued that 'the fundamental purpose of copyright' is 'to ensure that those who take on the risks of creation are appropriately rewarded for their abilities and efforts.' He reiterated his long-held belief that 'the fundamental principles of copyright law, the protection of rights of creators and owners, did not change with the advent of the internet and they will not change with the invention of new technologies', and promised to continue supporting creative industries via strong copyright protection. Against that backdrop, he then acknowledged that reform is needed, and committed to a 'thorough and exhaustive' review of the Copyright Act.

In addition to these general remarks, the Attorney had some specific comments to make with regard to a number of controversial reforms, including exceptions, ISP copyright policing and site-blocking:

Exceptions - As recently discussed, the Australian Law Reform Commission last week recommended that Australia introduce a flexible 'fair use' style copyright exception. The Attorney observed that he 'remain[s] to be persuaded' that a flexible fair use style exception is the best direction for Australia, but committed bringing an open and inquiring mind to that debate.

ISP copyright policing - the Attorney stated that:
The Government will be considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks.
This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy. 

This is a complex reform proposal, and how it is paid for is one of the principal unresolved issues.

It should also be noted that Australia has international obligations on this point and that the Government will not be seeking to burden ISPs beyond what is reasonably necessary to comply appropriate domestic and international obligations. 

As well, I would like to emphasise that this would not put Australian ISPs at a disadvantage by comparison with their counterparts internationally as many overseas jurisdictions have the concept of authorisation liability, secondary liability or similar, which are intended to capture ISPs.
Site-blocking - the Attorney also mentioned that stakeholders have requested new takedown powers which would 'ultimately require ISPs to "take down" websites hosting infringing content.'

A self regulatory approach? Site blocking and graduated response measures might be unpalatable to some voters, but legislation may be avoided: Senator Brandis stated a preference for these enforcement reforms to involve industry self-regulation rather than government regulation.

The full text of the Attorney-General's speech is available here (pdf). We'll keep you informed as the debate continues.

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