Is it legal to use a VPN to evade geo-blocking?

Are VPNs legal? ACCAN takes aim at ambiguities in Australian copyright legislation

The Australian Communications Consumer Action Network (ACCAN) has raised concerns that a government bill to block pirate websites may cover VPN services used to evade geo-blocking.

The bill — Copyright Amendment (Online Infringement) Bill 2015 — will allow movie studios and other rights holders to apply for court orders to compel ISPs to block access to overseas sites.

The proposed legislation is currently the subject of a parliamentary inquiry.

The text of the bill targets "overseas locations" where the "primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia)".

"Without clear legal precedent, there is ambiguity under the Copyright Act about what constitutes infringement in relation to the use of a Virtual Private Network (VPN) to gain access to geo-blocked products and services," states ACCAN's submission to the inquiry into the bill

"If this ambiguity is not cleared up, this amendment may have the unintended consequence of blocking these services and in turn harm competition and consumer choice."

In New Zealand, the legality of DNS-based anti-geo-blocking services is set to be tested in court.

The legality of circumventing of geo-blocking is something of a grey area in Australia, although Communications Malcolm Turnbull has previously argued that using a VPN to access overseas content is not illegal under the Copyright Act.

"The legality of [anti-geo-blocking mechanisms such as VPNs] is the subject of some debate and is likely to depend on the specific circumstances and the terms and conditions relating to the transaction," said the final report of the Competition Policy Review led by Professor Ian Harper.

The 2013 report of the parliamentary inquiry into IT pricing in Australia, which examined price discrimination, recommended that the Copyright Act be amended to explicitly support the right of consumers to employ anti-geo-blocking measures.

"The legality of bypassing geo-blocking is particularly important in a discussion about reforms to the Copyright Act," states ACCAN's submission to the site-blocking inquiry.

"Many of these reforms have been proposed in the context of treaty obligations designed to promote globalisation and free trade. The benefit for Australian consumers from these efforts is access to greater choice of products and services.

"However, this choice is curtailed if the Copyright Act is used as a tool to erect new trade barriers based on exclusive geographic licences. Geo-blocking better serves geographic market segmentation rather than the goal of copyright protection, which is to enable creators to receive compensation for their intellectual effort."

The government's website blocking bill is an "opportune time to clear up this lingering doubt about the legality of by-passing geo-blocking," ACCAN argues.

Cost-benefit analysis

ACCAN also makes a number of other recommendations in its submission, including a presumption in the bill in favour of allowing parties "to become interveners or amicus curiae" during applications for injunctions to block websites, that a cost-benefit analysis of the bill is undertaken (including a second cost-benefit analysis 18 months after the scheme commences operation), and that provisions in Australian copyright law "that offer incentives for service providers to terminate accounts" should be repealed.

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In addition, the government should adopt the recommendations in the Australian Law Reform Commission's <i>Copyright and the Digital Economy</i> report.

The website-blocking bill is a key pillar of the government's crackdown on online copyright infringement, along with an industry-developed anti-piracy code.

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Tags geoblockingaustralian communications consumer action networkcopyrightgeo-blockingAustralian Communications Consumer Action Network (ACCAN)piracycopyright infringement

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