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Much ado about nothing: have concerns over site blocking materialised?

  • 20.08.2021
  • By Peter Carstairs
Content Café

Having worked as both a filmmaker and a copyright lawyer, the issue of online piracy is one that is close to my heart. The copyright protection of an artist’s work is essential, firstly, to making a living but, secondly, to enable the funding of new works. Simply, it is a way of recognising an artist’s work.

Australia, however, is commonly identified as a country with high levels of online piracy. Incredibly, for example, when Season 5 of Game of Thrones was released in Australia, despite the season premiere being available on Foxtel, 32% of all Australians who watched it downloaded it illegally.

For all the internet’s wonders and the freedom to access information, and although some may see it as lawless, the internet is not a digital equivalent of Deadwood. The law of copyright applies to the internet in the same way as it would to any other setting where we get our films, TV shows and music.

Not only are individual internet users affected by copyright law, so too are intermediaries. An ‘intermediary’ is a service that stands between an internet-user and an online work and, without whom, a transmission such a download may not happen. Well-known intermediaries include carriage services providers (sometimes referred to as ISPs) such as Telstra, and search engine providers such as Google.

Given the role that intermediaries play in the downloading or streaming of audio-visual works, the Australian Government, as a means of reducing piracy, introduced a ‘no fault’ website-blocking regime in 2015. The scheme enables the Court, upon an application by a copyright owner, to make orders against ISPs and search engines (without any finding of liability) requiring them to block access to overseas websites that have the primary purpose or effect of facilitating online copyright infringement. Other countries such as the United Kingdom and Singapore have successfully introduced similar no-fault schemes.

At the time the scheme was proposed (and again when there was a proposal to amend it) it was subject to significant criticism that it would amount to a form of censorship and a restriction on the freedom to access information, particularly in relation to sites which host both legitimate and infringing material such as Pinterest and YouTube.

With the above in mind, I researched and wrote a paper titled The Inevitable Actors: an Analysis of Australia’s Recent Anti-Piracy Website Blocking Laws, their Balancing of Rights and Overall Effectiveness, published in the latest edition of the Australian Intellectual Property Journal (AIPJ).  The paper examines the Australian scheme in detail (including cases where blocking orders have been made) and concludes that the criticisms of the regime are unfounded.

Rather, Australia’s site-blocking regime has not curtailed freedom of speech or the right to access information, and it is unlikely to.

This is borne out in a number of ways including, firstly, the types of sites that have been targets of blocking orders which, without exception, have all facilitated large-scale copyright infringement with little or no evidence of legitimate material also being available. And secondly, where competing interests have arisen, these have been considered in light of a list of discretionary factors to be taken into account by the Court (as set out in the Copyright Act). These include, for example, the impact of any person likely to be affected by the orders, whether they are in the ‘public interest’, and whether they are ‘proportionate’ in the circumstances.

Importantly, the paper concludes that the regime is effective in helping to reduce online piracy and, further, that there is room for it to be expanded to include other intermediaries that are inevitable actors in the streaming or downloading process.

These include, for example, Alternative DNS providers such as Google DNS and reverse proxy services such as Cloudflare. These services sit between a user and an audio-visual work and can make a copyright infringing transmission possible. Certain website operators, for example, use Reverse Proxy services to hide their true internet address, whilst Alternative DNS services simply allow internet users to circumvent DNS based blocking orders. Given Australia’s high levels of piracy, it will come as no surprise that Australians are also prevalent users of Alternative DNS services.

The Australian Government has signalled that it intends to conduct a further review of its site-blocking regime, during which, it is hoped that the Government considers whether there is in fact room to expand the regime.

This article was originally published on Content Cafe.

ABOUT THE AUTHOR

Peter Carstairs

Peter is a Senior Associate in IP with Minter Ellison specialising in copyright and media disputes. He has also worked as a filmmaker in Australia, London and Los Angeles, including with global production company Anonymous Content.