This month, the Australian Attorney-General’s Department officially released its Online Copyright Infringement Discussion Paper, seeking comments from the public on how best to develop a legal framework to reduce online copyright infringement in Australia.
Online piracy is a serious concern worldwide, and when it comes to illegal downloading, Australians are among the world’s worst offenders. Communications Minister Malcolm Turnbull has identified online piracy as a ‘fundamental problem’ of our digital age, recognising that it threatens our creative industries by undermining the rights of content owners. The problem is complex, and the Government acknowledges that there is no easy fix. However, it is clear that a crackdown is on the way, and the Paper serves as a call to action for rights holders, ISPs and consumers alike to get serious about protecting copyright online.
The Paper proposes several amendments to the Copyright Act 1968, with the aim to create a flexible framework for reducing online copyright infringement. Importantly, the Paper proposes extending authorisation liability, to clarify its application to ISPs and address what constitutes taking ‘reasonable steps’ to prevent or avoid copyright infringement. This appears to be aimed directly at the decision of the High Court in Roadshow Films Pty Ltd & Ors v iiNet Ltd  HCA 16, in which iiNet was not held liable for authorising copyright infringement by its subscribers, because it did not have the power to prevent the infringement. The effect of the amendment would be that even though an ISP may not have direct power to prevent its subscribers infringing copyright, it is still expected to take steps to prevent or avoid infringement.
In addition, the Paper proposes to extend injunctive relief, enabling rights holders to apply for a Court Order which would require ISPs to block access to certain infringing websites, including those operated outside Australia. It also proposes extending the application of the existing safe harbour scheme to apply not only to ‘carriage service providers’ as defined in the Telecommunications Act 1997, but more generally to service providers who satisfy the safe harbour conditions. This extension would enable entities such as universities and online search engines, for example, to have the benefit of the safe harbour scheme.
What is clear from the Paper is that in the Government’s view, everyone has a part to play in protecting copyright online: “Rights holders can ensure that content can be accessed easily and at a reasonable price by their customers. Internet Service Providers can take reasonable steps to ensure their systems are not used to infringe copyright. Consumers can do the right thing and access content lawfully.”
The issues raised in the Discussion Paper have been stimulating much debate which is likely to increase as the deadline for submissions approaches.