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Digital Piracy and the Copyright Act

In December 2018, the Copyright Act 1968 was amended to make it harder for Australians to engage in digital piracy by downloading music, films and other digital content for free using sites like Pirate Bay. The amendment introduced a provision allowing copyright holders to obtain injunctions requiring search engine providers to block access to sites that profit from copyright infringements. The changes, lauded as protecting the music and film industries, have seen a sharp decline in digital pirating. However, many Australians continue to find ways to illegally download material.

How the bill was introduced

The Copyright Amendment (Online Infringement) Bill 2015 was introduced to parliament by Malcolm Turnbull, who said it offered an effective new tool for copyright holders to use to respond to widespread copyright infringements on sites operated outside Australia.

Turnbull said that existing copyright law had become inadequate to deal with the problem of digital piracy in the form of the widespread streaming and downloading of content online facilitated by overseas operators.

It is difficult for rights holders to act where websites facilitating infringements are located in jurisdictions where it is not practical to take legal action. The time and expense of obtaining an injunction makes it impractical for rights holders to enforce their rights against individual users who engage in digital piracy.

Turnbull explained that the bill introduces a new injunctions power making it possible for infringing material to be blocked without the need to establish fault on the part of the internet service provider. The legislation allows rights holders to apply to the Federal Court for an order that an internet provider disable access to infringing sites located outside Australia. The provision does not apply to Australia-based sites as rights holders can take direct legal action against those operators.

The provision

Section 151A of the Copyright Act provides that the owner of a copyright may apply to the Federal Court of Australia for an injunction that requires a carriage service to take the steps the court considers reasonable to block an online location outside Australia that:

  • Infringes, or facilitates infringement, of copyright;
  • Has the primary purpose or the primary effect of infringing, or facilitating an infringement, of copyright (whether or not in Australia);
  • The application may also seek an order that an online search engine provider take such steps as the Court considers reasonable so as to not provide a search result that refers users to the online location.

The court may grant the injunction in terms it considers appropriate, including:

(a) requiring the carriage service provider to take reasonable steps to do either or both of the following:
(i) blocking domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;
(ii) blocking domain names, URLs and IP addresses that the carriage service provider and the owner of the copyright agree, in writing, have started to provide access to the online location after the injunction is made; and
(b) requiring the online search engine provider to take reasonable steps to do either or both of the following:
(i) not providing search results that include domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;
(ii) not providing search results that include domain names, URLs and IP addresses that the online search engine provider and the owner of the copyright agree, in writing, have started to provide access to the online location after the injunction is made.

Once an injunction has been obtained, a copyright holder can block mirror and proxy sites that facilitate digital piracy without the need to return to court.

Resistance to the bill

The bill was met with opposition along the way, with the Greens warning that unintended consequences could flow from extended website blocking and that ongoing work would be required to ensure that free speech and public discourse were not impeded.

Australian Digital Alliance warned that the legislation puts legitimate sites and activities at risk as its ‘primary effect’ test potentially blocks innocent and commonly used sites.

Has it worked?

The changes have seen a decline in illegal downloading of material and an increase in the consumption of paid streaming services. However, surveys have found that a large number of Australians continue to engage in digital piracy on a regular basis. While the blocks have made it harder to download illegally, there are ways around them, with new proxy sites going up faster than search engine providers can block them. The true extent of digital piracy is hard to measure as while traffic to known sites is decreasing, users may be accessing proxy sites or using VPNs. A lot of digital piracy in Australia is attributed to a lack of cheap and easily accessible legal options, with some popular programs not being released on streaming services available in Australia.

The new provision will be reviewed in 2021.

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