In a move being celebrated by creators worldwide, the Australian parliament has approved the Copyright Amendment (Online Infringement) Bill 2015. The legislation will allow rights holders go to court to request that pirate websites be blocked in Australia. The explanatory memorandum, notes that the purpose of the bill is to “reduce online infringement.”
The bill’s opponents have employed the standard tech talking points, crying censorship and calling its justification “bogus.” They claim to be concerned about collateral damage but consistently show zero regard for the ongoing “collateral damage” suffered by filmmakers, musicians, and authors whose livelihoods are routinely leached by online thieves. For piracy apologists blocking pirate sites is an anathema. In their view the rights of piracy profiteers (who pocket profits from content theft) trumps the rights of creators at every turn.
Fortunately members of the Australian parliament were able to see through the over-wrought hyperbole and craft legislation that seeks to balance the rights of creators with concerns about online censorship. With the legislation’s passage, Australia joins the UK and a number of other nations in setting up a judicial review process to determine whether certain pirate websites should be blocked. The new Australian law establishes a “high threshold test” for the Court:
- The Court must take into account a number of factors before granting an injunction. These factors include:
- the flagrancy of the infringement or its facilitation
- whether disabling access to the online location is a proportionate response in the circumstances
- the impact on any person likely to be affected by the grant of the injunction, and
- whether it is in the public interest to disable access to the online location.
Further reading of the explanatory memorandum demonstrates the rationale for the legislation and, despite rhetoric thrown about by opponents, it seems quite reasonable.
8. Copyright protection provides an essential mechanism for ensuring the viability and success of creative industries by incentivising and rewarding creators. Online copyright infringement poses a significant threat to these incentives and rewards, due to the ease in which copyright material can be copied and shared through digital means without authorisation. [emphasis added]
9. Where online copyright infringement occurs on a large scale, copyright owners need an efficient mechanism to disrupt the business models of online locations operated outside Australia that distribute infringing copyright material to Australian consumers. [emphasis added] In addition, a consequence of fewer visitors at the particular online location may also impact the advertising revenue, which is often an integral element of the business models of these types of entities.
10. The Bill acknowledges the difficulties in taking direct enforcement action against entities operating outside Australia. The proposed amendments are intended to create a no-fault remedy against CSPs where they are in a position to address copyright infringement.
In the United States opponents of such legislation, often funded by tech interests, have successfully conflated sincere efforts to thwart online piracy with the specter of online censorship. However, no matter how they try to slice it, piracy does not = free speech. Websites that profit from piracy are criminal enterprises and are not worthy of protection.
Illegal activity in the brick and mortar world is not sheltered by the “free speech” excuse. Why should online piracy’s black markets be above the law? There are plenty of options for web users around the world to “share” files via any number of legitimate free sites. Sites like Pirate Bay and Kick Ass Torrents should not be thought of as sentinels to safeguard an open internet.
With passage of the law attention has turned to VPNs (virtual private networks) that would allow Australians to bypass blockages but its a red herring. VPNs are not the panacea many claim and, in fact, are often rife with malware and other security concerns. Of course, for the determined downloader there are other ways to get around a blockade, but the law’s intent isn’t really to prevent all access, but rather to deter easy access. The majority of folks who download illegal content online do so not only because it’s free, but it’s also easy. Any roadblock that can redirect these users to legitimate outlets is a welcome one.
Would similar legislation ever pass in the United States? After the SOPA (Stop Online Piracy Act) debacle it seems unlikely. Given the lobbying largess of Google and other tech interests in Washington, opponents seem to have constructed a formidable bunker against those who seek to fight online piracy profiteers. After all, some entities within the U.S. tech industry are also piracy profiteers and have a vested financial interest in keeping the Wild West status quo where an online eco-system of online theft for profit is allowed to flourish. Fortunately not every worldwide legislative body is under the thumb of big tech and so bit by bit, progress is being made.