A leaked government discussion paper reveals a "very radical proposal for copyright law reform in Australia" according to intellectual property expert Dr Matthew Rimmer.
The discussion paper "is a kind of wish list" for rights holders, said Rimmer, who is an associate professor at the ANU College of Law and an Australian Research Council Future Fellow.
The paper contains three proposals to clamp down on copyright violations. It cites the outcome of the iiNet trial — in which the Internet service provider was found to not be liable for copyright violations by its customers — as indicating that Australia's copyright regime needs reform.
Brandis earlier this year revealed that the government was looking at ways of reversing the ruling in the iiNet case.
The High Court's decision in that case, which was brought by a group of movie studios, "determined that the ISP, iiNet, was not liable for authorising the copyright infringements of its subscribers using systems that iiNet did not operate or control, and that there were no reasonable steps that could have been taken by iiNet to reduce its subscribers' infringements," the discussion paper states.
"The effect of the decision is to severely limit the circumstances in which an ISP can be found liable for authorising an act by a subscriber that infringes copyright."
Extended authorisation liability
The first proposal is the extension of liability for copyright violations .
"Extended authorisation liability seems an incredibly significant and radical expansion of copyright liability," Rimmer said.
"Essentially the proposal is to really overturn the High Court of Australia decision in Roadshow v iiNet and expand liability for copyright infringement for intermediaries."
"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 may still be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement," the discussion paper states.
"Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia's international obligations."
"That's really significant in terms of just thinking about all of the variety of intermediaries that exist, particularly in terms of ISPs," Rimmer said.
"It would mean significant new burdens for ISPs in terms of policing their sites for copyright infringement."
Under the proposal, amendments to the Copyright Act would be made to "clarify the application of authorisation liability" under sections 36 and 101 of the act.
When determining whether somebody has authorised copyright infringement those sections of the Copyright Act currently take into account "the extent (if any) of the person's power to prevent the doing of the act concerned", " the nature of any relationship existing between the person and the person who did the act concerned" and "whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice"
The "power to prevent" would "not longer be a separate element, but would be only one of a number of relevant factors in determining whether 'reasonable steps' were taken to prevent or avoid the infringement," the leaked discussion paper states.
The paper states that the government would look to industry to decide what would constitute "reasonable steps" and that the interests of consumers would be a "key consideration" in any scheme.
The second proposal is to allow rights holders to obtain court injunctions that would force an ISP to block access to particular websites.
"This is very controversial in terms of being a Net filter," Rimmer said.
"If you have copyright protection, you could seek injunctive relief to block a whole wide range of things and what's kind of disturbing about the proposal is really the failure to consider its impact on internet freedoms and civil liberties and traditional freedoms."
"Where online copyright infringement is occurring on a commercial scale, rights holders need an efficient mechanism to disrupt business models operated outside of Australia," the paper states.
The paper cites the ability in a number of EU nations for rights holders to get injunctions that force ISPs to block access to "internet sites that contain infringing content."
"This approach recognises the difficulties in taking enforcement action against entities operating outside the relevant jurisdiction, by giving rights holders an avenue to take immediate action and provides ISPs with the certainty and legal protection of a court order."
Under the proposal in the paper, the court would need to be satisfied that the "dominant purpose" a website was to infringe copyright. Proving this would be the job of rights holders.
The court would also have to consider the "rights of any person likely to be affected" by such an injunction, "whether an injunction is a proportionate response, and "the importance of freedom of expression."
The move would give copyright owners "a significant power to block access to significant parts of the Internet if they think a site has a dominant purpose to infringe copyright," Rimmer said
"Then the question is: What is the dominant purpose? There's a lot of infringing material on Google and Facebook and Flickr and a whole wide range of social media sites. And then there are sites with some very kind of mixed purposes."
The proposal would "give a radical power to take action by copyright owners against a wide range of sites," Rimmer said.
The discussion paper states that rights holders would meet any "reasonable costs" associated with blocking a site, and indemnify the ISP against any damages claimed by a third party.
Safe harbour scheme
The third proposal in the paper would extend the application of the safe harbour scheme.
"This would be achieved by removing the reference to carriage service provider and replacing it with a definition of 'service provider'," the paper states, extending safe harbour provisions to entities such as CDNs.
Rimmer described the proposal as "cunning ". "The cunning here is to expand the definition of carriage service providers to service providers," the researcher said.
"In other words social media sites and sites like Google and so forth who gain protection under the safe harbour scheme. Perhaps that part of the proposal is really an effort to try to buy off some key elements of the new economy and give them a sop as it were in terms of the legislative framework."
A 'collapsing of positions'
The discussion paper demonstrates that "there's a real collapsing of the position of the government and the position of copyright owners," Rimmer said.
As evidence he pointed to the paper's use of research conducted on behalf of the Copyright Council.
The paper "weaves in rhetoric about crime and fraud and consumer protection and harm to children," Rimmer said.
"The strategy of Brandis is to run a bold, radical campaign for copyright reform really emphasising the need to take action against piracy"
Rimmer added that claims in the paper that bilateral free trade agreements between Australia and countries including Singapore and the United States could require adjustments to copyright law are "controversial".
"That's not really required by the Australia-United States Free Trade Agreement, or the Korea-Australia Free Trade Agreement, or the Singapore-Australia Free Trade Agreement," Rimmer said.
Follow Rohan on Twitter: @rohan_p