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Wednesday, 28 November 2018
Page: 8793

Senator FIFIELD (VictoriaManager of Government Business in the Senate and Minister for Communications and the Arts) (10:50): Thank you, colleagues, for your contributions to this debate on the Copyright Amendment (Online Infringement) Bill 2018. The purpose of this bill is to further modernise Australia's copyright laws. The bill will ensure that website blocking remains an effective means for copyright owners to address large-scale copyright infringement by overseas operators. Together with small business tax relief and location incentives, these changes will help our creative industries to produce Australian content and tell Australian stories. They will also support investments that have made it possible for Australians to enjoy their favourite films, TV shows and music where and when they want.

I'd like to thank all the stakeholders who were consulted on the exposure draft of this bill and also those who participated in the Senate Environment and Communications Legislation Committee's inquiry into the bill. The government did carefully consider the comments and matters from stakeholders and made numerous adjustments to the bill prior to its introduction into the other place. Some expressed concern about the cost and difficulty of establishing that an infringing website is located overseas. In a global internet environment, proving that an online location is physically outside Australia is a very high threshold, given the use of proxy servers and other devices to mask locations. To address this concern, the bill includes an evidential presumption that an online location is outside Australia unless proven otherwise.

Concern was also expressed that copyright owners could dictate the blocking of an open-ended list of URLs, domain names or IP addresses without agreement of carriage service providers or online search engine providers. That is not the government's intention with this bill, and a provision was included—subsection 115A(2B)—that confirms that the Federal Court may grant an injunction that allows the blocking of future domain names, URLs and IP addresses on the condition that there is written agreement between the parties. This is consistent with orders that have been made by the court to date that explicitly provide for certain steps to be agreed in writing between the parties.

As noted in the Senate committee inquiry report, the measures are appropriately circumscribed, with the court maintaining ultimate oversight over these types of injunctions, including the requirement that there be evidence of a sufficient nexus between the online location covered by the original injunction and the location to which the order is expanded. Some stakeholders suggested that 'online search engine provider' should be defined. Doing so would be problematic and would risk locking into legislation a definition that is rendered redundant by the fast-moving changes underway in the technology sector. Instead, the bill has been amended to provide the minister with a power to exclude certain online search engine providers from the website-blocking provisions.

The Senate Scrutiny of Bills Committee queried the justification for this power, noting that significant matters such as the specification of providers that are to be exempted from an injunctive scheme should be included in primary legislation. As noted in the government response to the Senate Scrutiny of Bills Committee, there is adequate justification for this power. This measure provides a more flexible way of dealing with the potential, although small, that an injunction is brought against a party to which these provisions were not intended to apply. Although this power is unlikely to be used, it provides an important safeguard to discourage overreach by copyright owners.

The extension of the scheme to include online search engine providers is an important measure that will improve the effectiveness of the scheme. As noted in the Senate committee inquiry report, a measure of this type is appropriate given that these providers play a significant role in both the infringement and the enforcement of copyright. They are part of the problem as well as the solution. Some also expressed concern about the primary purpose or primary effect test—that it would enable sites such as Pinterest and Google Translate to be captured by a copyright-blocking injunction. This is highly unlikely to occur, particularly as the court may consider, under subsection 115A(5), a number of factors when determining whether to grant an injunction, including proportionality and public interest. It's difficult to imagine that legitimate websites with other purposes or effects, such as social media websites and translation websites, would satisfy this test. Nonetheless, the bill was adjusted to include a cross-reference to subsection 115A(5) to make clear that this is relevant to the Federal Court's considerations in determining whether to grant injunctions. The Senate committee inquiry report also concluded that there are adequate safeguards in section 115A, including as amended, to ensure that unintended consequences, such as it extending to legitimate sites, would not occur in practice.

There were also a range of concerns raised that did not warrant amendments to the bill. Some stakeholders argued that wording changes in subsection 115A(1) from 'reasonable steps' to 'such steps as the court considers reasonable to disable access' would lead to the court ordering inappropriate steps. But this change, which is intended to clarify that the court has the discretion to set the terms of the reasonable steps, is merely reflective of how the court has applied the test to date. In effect, the revised provision will continue to operate as it currently does in practice. Some were concerned that the primary effect test would increase the risk of carriage service providers being liable for costs in proceedings. Some also asked for subsection 115A(9) to be amended to provided that carriage service providers are not liable for costs even if they take part in proceedings. This is not an amendment the government supports. The Federal Court is best placed to decide on issues such as the awarding of costs, and it would not be appropriate to override or fetter this discretion. Some argued that copyright infringements are being effectively dealt with through voluntary actions to block and reduce access to infringing sites and that injunctions are therefore unnecessary. The government welcomes efforts by some players, including Google, to voluntarily curb access to copyright-infringing sites. This is a positive development and is entirely consistent with the government's overall approach to copyright. However, voluntary measures are just that; they're voluntary. The website-blocking scheme simply provides a fallback if voluntary measures prove to be insufficient or are not implemented broadly across the industry.

As noted earlier, the Senate committee inquiry considered submissions from a broad range of copyright owners, carriage service providers, digital platforms and digital rights groups. The committee concluded that, on balance, the benefits of the bill outweigh any potential negative impacts that could arise. The committee also recommended that the government review the effectiveness of the measures contained in the bill two years after its enactment. This is a sensible proposition and one that the government supports. A review of the operation of the copyright website-blocking scheme will be conducted within two years of the commencement of the bill, and the findings and recommendations of that review will be made public.

This bill is an important reform to Australia's copyright framework that will ensure that the Australian creative sector can continue to invest in quality content and stories. I thank colleagues across the chamber for their support for this legislation. I particularly acknowledge the positive and constructive approach that Mr Mark Dreyfus, the shadow Attorney-General, has taken in relation to this matter, and I do want to acknowledge that in copyright matters in general Mr Dreyfus has been a good colleague to work with. I also acknowledge Senator Griff and his positive contribution on behalf of Centre Alliance and also Senator Hanson-Young, who has also been very supportive of sensible changes to copyright legislation, particularly this piece of legislation before us.

Before I commend the bill to colleagues, I do note that Senator Hanson-Young was on the speaker's list but was not in a position, I believe, to make her contribution at the time I got the call for the summing up. So, Mr Acting Deputy President, assuming she wishes to make a contribution, it's in the hands of the chamber as to whether that is possible after the minister has spoken or whether that is best made in the committee stage.

The ACTING DEPUTY PRESIDENT ( Senator Leyonhjelm ): We could allow Senator Hanson-Young to speak now and then we could put the question on the second reading at the conclusion, if that suits you.

Senator FIFIELD: It's in the hands of the chamber as to what is possible.

The ACTING DEPUTY PRESIDENT: Senator Hanson-Young, do you wish to speak?