Copyright legislation: Fears of scope creep for website-blocking regime

Senate calls for government action on copyright reform

A bill designed to limit ISP subscribers' access to overseas-based websites that facilitate piracy will create the architecture of a "second Internet filter" in Australia, Greens Senator Scott Ludlam said today.

The Senate has begun debate on the Copyright Amendment (Online Infringement) Bill 2015.

Update: The bill has been passed by the upper house.

The bill received bipartisan support last week in the lower house, and Labor and Coalition senators today endorsed the legislation.

However Ludlam and the Liberal Democratic Party's Senator David Leyonhjelm both spoke out against the bill during debate earlier today.

The bill will allow rights holders to apply for Federal Court injunctions that will compel ISPs to stop their customers accessing 'online locations' that engage in or facilitate copyright infringement.

Ludlam warned that the scope of the scheme is likely to grow over time.

"Does anybody seriously believe that this scheme won't be expanded in the future to cover more categories of content?" Ludlam said.

"Of course it will. It has scope creep absolutely built into it. It is lazy and it is dangerous."

Ludlam said the government has set in place "not one, but two Internet filtering schemes".

"In the ashes of [Labor Senator Stephen] Conroy's mandatory Internet filter, where sites would be blocked against a rather poorly defined block list or black list of websites, Senator Conroy came up with another rather remarkable and expansive interpretation of section 313 of the Telecommunications Act," Ludlam said.

That interpretation was that government agencies could use Section 313 to compel ISPs to block customer access to websites.

It was Section 313 that the Australian Securities and Investments Commission was employing when it requested an IP-based website block that unintentionally black listed a quarter of a million unrelated websites.

An inquiry sparked by the debacle issued a report earlier this year that "rubber stamped" the use of Sectoin 313 as an "unregulated Internet filter," Ludlam said today.

The "second filter" of the copyright enforcement legislation is unlikely to be effective when it comes to preventing infringement, the Greens senator said.

"The only effective way really to deal with copyright infringement on the kind of the scale that the government is concerned about is to just make [content] available conveniently, affordably and in a timely way," Ludlam said.

"The distribution model where you could sit on your 20th century distribution bottleneck and put a property up on screen, and then wait for two months and do the TV release, and then wait another two months and release it on DVD — that model is broken," the senator added.

"That model worked before the Internet existed. And rather than coming up to speed with that fact and offering content tin a timely and convenient and cost-effective way, the rights holders, who have collectively donated around $4 million to those parties who are today championing their cause — the rights holders have called on the government to legislate and they finally found a pushover of an attorney-general who's doing so, and an opposition too weak to be bothered to turn up to the fight."

"The bill is vaguely drafted and unlikely to achieve its aims," Leyonhjelm said.

"In addition, it aims to protect rights holders at everyone else's expense, which is not how the rule of law is supposed to work. Website blocking is a drastic remedy and a blunt tool.

"The bill has the potential to be used against a range of legitimate sites and has inadequate protections for non-party interests."

Labor Senator Jacinta Collins said that her party did not view the bill as a "panacea" for piracy.

"Labor considered this bill closely in the Legal and Constitutional Affairs Committee. And while Labor supports measures that will discourage or disrupt piracy, the power to block websites is clearly to be exercised with great caution and we want to ensure the power that this bill creates is appropriately confined."

Collins noted that the government had accepted the committee's recommendations on changes to the bill and its explanatory memorandum.

The Greens have "sought to whip up great fear and anxiety about this bill," Collins said.

"The Green Party claims that this bill, which is of course only a matter of civil law, will criminalise all manner of websites and platforms," the Labor senator said.

"Labor is satisfied that this bill is not overboard. We don't expect its operation to be controversial."

Labor successfully moved an amendment to the motion for a second reading bill that called on the government to respond by 17 September to the recommendations of the Australian Law Reform Commission's report on copyright and the digital economy.

"While the government has now pursued several anti-piracy measures, they have made no progress on broader copyright reform even though the attorney general promised nothing less than a complete rewrite of the act shortly after he took office," Collins said.

The government received the ALRC report in 2013.

"And yet, incredibly, the government is yet to respond to its recommendations, let alone act on any of them," Collins said.

"This is not good enough."

A Greens amendment to delay debate on the bill until the government responds to the ALRC report failed.

Attorney-General George Brandis has indicated that the government is still interested in broader copyright reform.

Ludlam has moved a number of amendments to the text of the bill.

The first of those amendments, which would make clear that circumventing geoblocking methods is legal, has been voted down.

Debate resumed this afternoon in the Senate.

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