The Australian government has proposed amending the country’s Copyright Act to make internet service providers legally responsible when their users infringe on copyrighted material, and to allow the copyright industry to force ISPs through the courts to censor specific websites.
In a discussion paper revealed today by Crikey, Communications Minister Malcolm Turnbull and Attorney-General George Brandis plan to soon approach the industry for feedback on three proposals to amend the Copyright Act in order to clamp down on online piracy.
The Government floated tweaking the law to allow members of the copyright industry to use the court system to force ISPs to censor websites which exist predominantly to infringe copyright; and to extend ‘safe harbour’ provisions to ISPs currently unable to access them.
The most controversial proposal, however, includes a suggestion to loosen the “reasonable steps” provision of the act such that even if an ISP has no power to prevent an infringement, it would not necessarily be precluded from having to take reasonable steps to prevent it.
The existing authorisation liability provision of the act prescribes that three factors must be taken into account in determining whether a provider has allowed for an infringement to take place.
Courts must consider the extent of the provider’s power to prevent the infringement; the nature of any existing relationship between the provider and the infringer; and whether the provider took reasonable steps to prevent the copyright infringement.
The subsection of the Copyright Act was key to the High Court case between the copyright industry and ISP iiNet in 2012, which ultimately found in the ISP’s favour.
The court found that iiNet could not have taken reasonable steps to prevent its customers’ infringements as it did not own or operate the systems they used to download copyrighted material.
Turnbull and Brandis said the High Court’s decision had ‘severely limited’ the circumstances in which an ISP can be found liable for their users’ copyright infringement.
“The Government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement."
“Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry co-operation and functions as originally intended, and is consistent with Australia’s international obligations.”
- Online Copyright Infringement discussion paper
The discussion paper also proposed amending the Copyright Act to allow the copyright industry to apply for a court order against ISPs to block access to foreign-operated pirating sites which exist solely for users to download copyrighted material.
The ministers said such a provision would allow copyright holders to block the access without needing to prove that an ISP had allowed the infringements to go ahead.
The powers would also prevent users from moving to a new ISP to evade orders to cease their pirating activities by listing ISPs as respondents to the application for injunctive relief.
Rights holders would need to be able to prove to the court that the website in question existed only to offer pirated material.
iiNet chief operating officer Steve Dalby said he was still waiting for the paper's official release, and would study it and consult with industry colleagues before providing a view on its merits.
The offices of Malcolm Turnbull and George Brandis have been contacted for comment.
The paper is yet to be officially released, and had been expected to arrive at some point this month, following discussion between Brandis and the US and UK governments on their approach to copyright infringement. Submissions on the proposals will be open until August 25.