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Tuesday, 16 June 2015
Page: 6410

Mr PERRETT (Moreton) (19:45): I, too, rise to speak on the Copyright Amendment (Online Infringement) Bill 2015. I have big shoes to fill, after that great speech from the member for Greenway. The purpose of this bill is to address the ever-increasing problem of online piracy in Australia. As mentioned by the member for Greenway, by international standards Australia's level of online piracy is, sadly, very high. In fact, according to the Choice survey, about one in three Australians has accessed data. If I think of one in three people in my electorate, say, my wife, me and let's say any other person in the chamber from Moreton, one of us three will have accessed data and I know it is not my wife or me.

But, obviously, one in three Australians is doing that, according to the Choice survey. I do not know whether that is because of our larrikin spirit or our convict links or, as the member for Greenway touched on, the fact that Australians have been shafted for such a long time when it comes to price and the timing of the shows that they want to watch. Nevertheless, irrespective of those reasons, piracy is a real threat to our creative industries. It is important that we look after our authors, directors and musicians by ensuring that they receive a fair return for their artistic endeavours. I note that this matter has been canvassed before by the member for Chifley in a previous inquiry. He raised those concerns about price and timing. I will not canvass that in this speech. Instead, I will just address the copyright legislation that is before the chamber.

However, as an author and someone who struggles with creative endeavours, I think it is important that we do look after these industries. These industries are still reeling, particularly in terms of artistic endeavours, by the recent and bizarre decision by the Attorney-General on budget night to strip $105 million from the independent, well-respected historically creative and lean Australia Council and move it into his office. I will address that matter in other forums, but I do want to focus particularly on the protection of artistic endeavours contained in this copyright amendment bill.

Obviously, piracy damages a vulnerable industry and impacts on precious Australian jobs. I have been involved in that creative process outside of being a politician both as a musician and as an author—a very ordinary musician and an author with limited financial success. Nevertheless, back in my teachers college days, I was in a band that people can track down. I had a fantastic songwriter, John Carozza, who went on to become an artist. In fact, he has a show commencing this Friday at Gallery 61, Musk Avenue, Kelvin Grove. I hope to get along to that.

Mr Danby: What time?

Mr PERRETT: From 6 pm to 8 pm—thank you, Member for Melbourne Ports. I know you will go along because of your support for artistic endeavours. There is a great artist, a musician, now a painter, finding it hard to extract an income from his artistic endeavours. As an author I know how difficult that is as well. I understand the difficulties of emerging artists in particular in trying to develop a sustainable income. These are very difficult industries, whether it be cinema, writing, music or whatever, to get a foothold in. And in this modern world of illegal downloading it is even harder to make a buck. It would be a sad day indeed if the only way for an up-and-coming rock star—U2, Midnight Oil or the like—to make a dollar would be to actually busk and perform live rather than sell their product not just to Australia but to the world, something that Australian musicians, cinematographers and theatre producers have done so well.

The bill will not solve this difficult problem but it will be a small common-sense measure that will disrupt the foreign websites which are acting as havens for piracy and may discourage those one in three Australian consumers from participating in this practice. It is a practice that sabotages the artistic endeavours of the very artists we admire and support. Obviously, we do not download the material from artists whom we do not admire, respect and support. So it is a conundrum. As the member for Greenway touched on, if people had the opportunity, they would be prepared to pay something that is reasonable. But we come down to those problems of price and timing.

I stress up-front for those people who are interested and I am talking particularly to one of my constituents Nerdy Nigel—that is his Twitter name—that this bill does not provide an internet filter of any kind. It provides—and this is important in a week where we are celebrating the 800th Anniversary of the Magna Carta—a judicial remedy. A judge will decide whether the conduct involved breaches our Australian law and each case will be decided on its merits—something that all Australians would obviously be supportive of. This bill will provide for the owner of a copyright to apply for an injunction to require a carriage service provider to take reasonable steps to disable access to an online location.

An injunction, as any lawyer would know, is a serious remedy to seek. So the bill provides that, before a court can grant an injunction, the court must be satisfied that the primary purpose of the website is to infringe copyright or to facilitate the infringement of copyright. I repeat again: the carriage service provider, the CSP, will be impacted on only if the court is satisfied that the primary purpose is to infringe copyright or to facilitate the infringement of copyright.

The primary purpose test is built into the bill and is a high threshold for the applicant to meet and that is a necessary protection for CSPs so that they are not targeted if their main purpose is actually a legitimate purpose. Some examples of legitimate purposes include an art gallery website, which is operated from another country, or even the iTunes store, a site where I seem to be investing most of my disposable income. I have moved on from cassettes—that was not so good. CDs were also not a wise decision. I am now investing in iTunes.

Mr Danby: It can all go on plastic!

Mr PERRETT: I never moved into records, Member for Melbourne Ports. Perhaps that would have been a wise financial decision, but I would not change it at all. Music is such an important part of my life. In both of these examples the CSP is legitimately providing content for the purpose of selling that content and benefiting the holder of the copyright. There may, however, be occasions where the photograph on the art gallery website is not properly authorised, or iTunes is not licensed to distribute a particular item in Australia—something which I occasionally come across when tracking down some of the more obscure bands that I like to listen to.

No-one would seriously contend that, in those particular cases, websites like iTunes should be disabled. However, this legislation is designed to disrupt those websites that are flagrantly acting as conduits to pirated copyright material. It is important that, when such a serious consequence as disabling access to a website is at stake, there should be safeguards in place. The bill provides that before a court can grant an injunction it must consider 11 mandatory factors contained in the legislation: (1) the flagrancy of the infringement of the copyright; (2) whether the website makes available directories, indexes or categories of the means to infringe copyright; (3) whether the owner of the website demonstrates disregard for copyright generally; (4) whether the access to the website has been disabled by orders from any court of another country; (5) whether disabling the access is a proportionate response to the infringement of copyright; (6) the impact on any person or class of persons likely to be affected by the grant of the injunction; (7) whether it is in the public interest to disable access to the online location—an important consideration; (8) whether the owner of the copyright had notified the operator of the online location as required under the legislation; (9) whether any other remedies are available under the Copyright Act; (10) any other matter prescribed by regulations; and (11) any other relevant matter. It is a non-exhaustive list, so the court can consider any other relevant matter. This judicial discretion is another safeguard—and an important one when the remedy sought is as serious as an injunction.

There have been concerns around this bill—in particular, that its provisions would extend to blocking virtual private networks, VPNs. The Senate Legal and Constitutional Affairs Committee has investigated whether that would be the case, and our Labor senators on that committee are satisfied that the provisions of the bill do not extend to the blocking of VPN usage. To eliminate any doubt whatsoever about the blocking of VPNs, Labor has asked that the government amend the explanatory memorandum to clarify this, and I am sure we will hear from the minister directly about this. I hope that the government will attend to that.

We are living in a digital era. As an occasional author, I appreciate how different the publishing world is today from even 10 years ago. At a Labor Party conference not that long ago, I remember arguing with the Hon. Craig Emerson about the parallel importing of books. I genuinely believed the arguments that I had then, but I see now how much Kindles and iPads have taken over the reading experience for people. Now they are completely commonplace on a plane; it is almost rare to see someone holding a paper printed book. We do need to have these arguments, particularly when it comes to supporting Australian endeavours. We are a small country, we are a long way away from Europe and the United States—from anywhere, some might argue—so it is important to support that Australian story wherever we can. I was particularly concerned today to revisit some of these arguments when the entertainment industry visited me to talk about a proposed review—supposedly a red-tape review in terms of a government deregulation agenda—that is going to have a particular challenge for the Australian entertainment industry. Australia's longstanding support for home-grown entertainment and entertainers could be under threat by the Attorney-General's review. It was quietly announced on, I think, 6 January; not even a press release came out about this review. The government is proposing to cut the requirements for taxpayer-funded productions to employ Australian actors and crew. This would completely undermine decades of work that has built up a viable local entertainment industry.

I should explain that the guiding principle for the current arrangements is simple: productions that are funded by Australian taxpayers should create opportunities for Australian actors and crews to work, gain experience and get the breaks they need to succeed here and on the world stage. That is how we are able to produce those great actors. That is a matter that the Attorney-General is advancing that we will discuss later down the track. If we are going to have a legitimate, strong, true Australian story, it is important that we make considered decisions that are in the national interest rather than just letting the market rip. That is not the Australian way at all. As I said, we had a similar argument when it came to publishing a few years back. Being aware of these changes, Labor, when in government, asked the Australian Law Reform Commission to launch an inquiry into copyright law in the digital economy. The resulting report was provided to the current government in November 2013. The government have been sitting on that report for 18 months. They have not responded to the report, let alone taken any steps to implement any of the recommendations made by the Australian Law Reform Commission.

Australia has a vibrant community of artists and creators. You see them everywhere; in fact, I met with a group of them last Friday in my electorate of Moreton at Sherwood: a group of painters and people who sketch, called The Half Dozen Group of Artists, who have been around for 75 years. And they are everywhere—they are what holds this Australian entity together by telling those Australian stories, whether you were fresh off the boat two years ago or whether your family roots go back to Governor Bligh and beyond. Whatever your story is, you tell that Australian story. But this sector needs support. The artistic sector does not need the uncertainty of funding cuts and an Attorney-General who wants arbitrary control of the funding that is left. They do not need the uncertainty of outdated regulations around the new digital era in which they are contributing. This bill is a small measure to help reduce the current levels of online piracy in Australia, and I support the government's endeavours.