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Monday, 22 June 2015
Page: 4029

Senator FIERRAVANTI-WELLS (New South WalesParliamentary Secretary to the Attorney-General and Parliamentary Secretary to the Minister for Social Services) (13:13): I thank those who have spoken in relation to the Copyright Amendment (Online Infringement) Bill 2015. Australian art, music, literature, film and television are a treasured part of the Australian way of life. A world without creative works would be a world with much less colour. The creative industries are also a major driver of economic growth. According to a 2015 report, Australia's creative industries employ over one million people and generate economic value of more than $111 billion, including $4.8 billion in exports. It is therefore essential that we provide incentives and rewards for creators and appropriate protections for the fruits of their labours. These incentives, rewards and protections can only be provided through a robust copyright framework.

Online copyright infringement is highly prevalent in Australia. There is a range of reasons why Australians choose to infringe copyright. It is a complex problem. There is no single cause and no single solution, but a key part of the equation is the constant, ubiquitous supply of infringement content. In this digital age all forms of information can be disseminated freely and easily to a far greater extent than ever before. With the good comes the bad: content into which artists have invested years of effort, and their life savings, can be shared in seconds, at no cost, without their permission.

Supply of infringing copyright material is delivered efficiently, relentlessly and on a large scale to the homes of Australian consumers. Foreign based online locations are often responsible for these operations. The operators of these online locations not only derive enormous profits from their infringing activities but often use these profits to fund other serious criminal activities. If unchecked these infringing online locations will drive legitimate distributors and creators out of the Australian market in spite of their best efforts to change their business models to suit the desires of Australian consumers.

The price and availability of content in Australia has also been cited many times as the key cause of online copyright infringement. It is certainly an important contributing factor. Australian consumers do not want to pay more for their content or wait months longer to watch it than consumers overseas. However, copyright owners have come to realise this and they are taking steps to address it. For example, they have acknowledged that it has been a mistake to delay the release of content in Australia. They have made significant efforts to improve the availability of affordable and timely content for Australians. The recent launch of movie streaming services such as Netflix, the earlier release of films in Australia and the lowering of entry-level prices on pay-TV packages have been notable steps in the right direction.

Consumer behaviour forms the final part of the equation. The internet has brought unprecedented freedom to access information, a freedom to which the majority of Australians are now accustomed. Australians no longer discriminate between information that is available legitimately and content that they do not have permission to access without paying the price that the content owner is entitled to ask for. Australians love creative content. They value it and they want to enjoy it, not destroy it. They need to be reminded that, if they take too much without giving back, they will jeopardise the production of the content that they love. It is, therefore, important that the bill is complemented with other measures that educate users about respect for copyright. One important initiative is the industry code that has been developed by internet service providers and rights holders. It is intended to provide a mechanism to warn Australian consumers of the consequences of copyright infringement and inform them of legitimate sources of content. It is currently being considered by the Australian Communications and Media Authority, and I am hopeful it will soon be registered and in operation.

At present, copyright owners have no effective means of combating the wholesale infringement of their rights. Direct infringement proceedings against foreign based online locations are fraught with difficulty. These are the challenges of enforcement. The territorial nature of copyright means that copyright owners often face complex issues of private international law when enforcing their rights in the online environment. The legal complexities and the possibility that copyright owners will need to attend foreign courts to enforce their rights means that any direct proceedings against a foreign online location are likely to be prohibitively costly, particularly for lesser known copyright owners. It is also not practical to bring proceedings against individual infringers where infringement occurs on a large scale.

This bill provides copyright owners with an efficient mechanism to disrupt the supply of infringing content to Australian consumers. This bill will provide an enhanced streamlined mechanism that enables infringing material to be blocked by a carriage service provider without the need to establish fault on the part of that provider. Specifically, the bill will introduce a new provision that allows rights holders to apply to the Federal Court for an order directing a carriage service provider to disable access to infringing online locations located outside Australia. There are a number of safeguards to ensure that the power does not unduly encroach on other important public and private interests. First, the provision will only capture online locations where it can be established that the primary purpose of the location is to infringe copyright or facilitate the infringement of copyright. Second, the court may consider a broad range of factors that reflect competing public and private interests. These factors include, for example, the flagrancy of the infringement or its facilitation; whether blocking access to the online location is a proportionate response in the circumstances; and the overall public interest.

The Senate Legal and Constitutional Affairs Legislation Committee recommended that the bill be passed subject to four other recommendations. The government would like to thank the committee for its work, and all those who put in submissions. The government has accepted all of the committee's recommendations, which have been addressed by the amendment made to the bill in the House of Representatives and through the explanatory memorandum that accompanies the bill before the Senate. In response to the committee's recommendation the bill now gives the Federal Court discretion to take into account specified matters in deciding whether to grant an injunction rather than being required to take these matters into account and what weight to place on those factors. This is consistent with the approach normally taken by a court in assessing whether to grant an injunction.

The government has also included more guidance in the explanatory memorandum as a result of the committee's recommendations. We have clarified that the appropriate orders which the Federal Court may make in granting an injunction could include a requirement that parties set up a 'landing page', where subscribers will be diverted if they try to access a disabled online location. We have also clarified that, consistent with case law, carriage service providers should not be exposed to legal actions by subscribers as a result of acts or omissions in compliance with an order and that the court has discretion to make appropriate directions on the cost of implementing an order. The explanatory memorandum also provides additional detail on the operation of the primary purpose test. Specifically, an online location could have the primary purpose of copyright infringement even if it operates in such a way that it derives profits from advertising revenue. Finally, the explanatory memorandum addresses the application of the provision to virtual private networks (VPNs). This is a concern that was raised during the committee process. On this point, the government wishes to stress that the bill is not intended to capture VPNs which are promoted for legitimate purposes or which are merely used to access legitimate copyright material distributed in a foreign geographic market. VPNs have a wide range of legitimate purposes. Providers of VPNs have no oversight, influence or control over their customers' activities. The government has also committed to review the operation of the bill 18 months after its commencement.

I would like to briefly comment on the status of other copyright inquiries and reviews. First, the government has been clear that its first key priority is to address online copyright infringement. This has been a growing problem over a number of years, which has not been properly addressed. For example, the previous government attempted, through an Attorney-General's Department round-table process, to develop an industry agreement, but without success. We have now had the opportunity to deal with this issue properly. Second, the government has not lost sight of the need for broader copyright reform. The Attorney is on the record as saying that the act is long overdue for a rewrite; however, the debate surrounding the current bill illustrates just how complex copyright reform can be. While others may rush to easy conclusions, the government is committed to a genuine reform process. In the meantime, the government continues to develop copyright reforms that respond to pressing needs. For example, last week we tabled the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled and a related National Interest Analysis, and referred it to the Joint Standing Committee on Treaties.

In conclusion, this bill forms an important part of the solution to the longstanding problem of online copyright infringement. It targets the systematic supply of infringing-copyright material on a large scale by foreign based online locations that often derive profits from infringement. This will provide breathing space for the legitimate market, so that innovative distribution models that provide competitively priced and timely content can properly flourish in Australia. The bill provides a proportionate, balanced and effective solution which takes into account other important public and private interests. I conclude by thanking all senators who have contributed to the debate on the bill. I commend the bill to the Senate.

The ACTING DEPUTY PRESIDENT ( Senator Dastyari ): The question is that the second reading amendment moved by Senator Collins be agreed to.

Question agreed to.