August 4, 2015 5:44 pm
Pay TV company Foxtel is preparing to launch a legal case "in the coming months" to have piracy-related websites like The Pirate Bay blocked from access in Australia.
The company has told the ABC it is currently receiving legal advice on "how best to put the legislation into effect" and expects to do so soon.
But legal experts and internet user groups are surprised they have not yet seen a Federal Court site-blocking case, and that it may be several more months before it happens.
As part of this story, I asked every organisation/person who made a submission to the Senate inquiry into the legislation what they thought was going on.
While many of the comments made it to the final piece, I have put full responses here (in the order they were received, oldest to newest)
Chris Berg, Institute of Public Affairs
I'm not familiar with any websites blocked or cases launched. The "urgency" was transparently absurd for legislation such as this - not at all a matter of national security, life or death, and, as the government itself pointed out, the infringement it was intended to prevent had been going on for a long time. But then urgency in legislation is almost always a political tactic, not a public interest necessity.
Jon Lawrence, Electronic Frontiers Australia
Are you aware of any web sites (or “online locations”) that have been subject to court action under powers granted by the Copyright Amendment (Online Infringement) Bill 2015?
The amendments became law on 26 June 2015, but no case has yet been launched. Do you know why?
No. Evidently this law was neither as urgent nor as necessary as Mr Brandis claimed. It is unsurprising that he has seriously misunderstood the reality in this regard given his refusal to consult with consumer representatives.
Do you have any other comments about the site blocking bill that you would like to make?
The rapid massive growth of legal streaming services, particularly Netflix, over the last few months demonstrates all-too-clearly that Australian consumers are desperate to pay reasonable prices for timely access to quality content.
The research released last week by the Communications Minister further reinforces this point and clearly shows that the majority of Australians that access infringing content online do so because the content they wish to consume is simply not available legally. That research also clearly demonstrates that the industry copyright code, which the government wants to force on an ISP industry already struggling under an unprecedented regulatory onslaught, will be ineffective.
It's time that this government walked its deregulation talk and allowed the market to resolve what is demonstrably a market issue. The Copyright Amendment (Online Infringement) Bill was unjustified and evidently unnecessary and should be repealed. The industry copyright code, which has once again stalled on the all-important issue of who bears the cost, should be finally abandoned.
John Stanton, Communications Alliance
I’m not aware of any planned injunction applications from rights holders at this point
ISPs hope that if applications are to be lodged, rights holders will discuss them in advance with ISPs, to provide an opportunity for some shared understanding on logistical and other issues. These issues including timing, the provision by rights holders of a landing page to inform internet users why a web-site has been blocked, discussion of the various technical options for web-site blocking and the planned breadth of an application (i.e. will it be targeted at just one ISP or many).
Laurie Patton, Internet Australia
We are astounded, given the urgency with which this law was passed at the urging of the rights holders, that so far they haven’t bothered to use it. We would have thought that they’d have a raft of cases ready to go if the problem is that critical.
Internet Australia is concerned at the tendency of the Government to rush to pass legislation that affects the Internet without having any serious proof that it will do what they hope it will do.
The best way to deal with unauthorised downloading is to make the content available at the same time it is released in the home country and at comparable prices. Even the Government’s own research found that most people would prefer to pay if they could get the programs they wanted easily and at reasonable prices.
The site blocking law has been introduced precisely at the time that we’ve seen the launch of Netflix and other local streaming video services. It would have been sensible to see what impact that had on ‘piracy’ before introducing punitive legislation that hasn’t been proven to work.
Music Rights Australia
Music Rights Australia did support the introduction of the right to obtain injunctions to address the damaging impact which illegal off shore sites have on the music industry.
We believe section 115A, which came into effect on 26 June 2015 , will assist rights holders to disrupt these illegal sites and this will support song writers, music publishers and labels and the over 30 licensed online music services and the many bricks and mortar music stores which make music available to consumers where, when and how they want it across a range of price points including free on some services which are supported by advertising.
As you know litigation, in any context, is a serious matter and it takes time to compile the evidence required to meet the standard of proof courts require if an applicant is to be successful and get the orders they seek.
Additionally, Section 115A gives rise to particular, and very complicated and detailed, evidentiary requirements.
We are not aware that any cases have been filed but that is not surprising given the short amount of time the section has been in effect.
Foxtel welcomes the passage of legislation that will allow us to seek injunctions to block illegal over seas sites that facilitate copyright infringement. Foxtel and other rights holders are currently taking legal advice regarding how best to put the legislation into effect and will commence legal proceedings at some time in the coming months.
Phonographic Performance Company of Australia, Dan Rosen
PPCA has been a strong supporter of the introduction of this new right of relief from the very beginning.
PPCA believes that Section 115A provides an effective tool to disrupt illegal offshore sites which make millions of dollars from advertising but give nothing back to the artists whose work they systematically exploit on a massive scale.
PPCA has a diverse licensor base. PPCA represents the interests of over 1,800 rights owners, over 3,000 registered recording artists and over 30,000 record labels. The majority of PPCA’s registered artists and record labels are small businesses or independent artists who rely on an effective copyright law framework in order to make a living. Online copyright infringement has a detrimental effect on the ability of these artists and record labels to sustain a livelihood from their creative endeavors.
PPCA is unaware of any cases that have as yet been filed, however it has been a very short time since it was given Royal Assent (26 June 2015).
The initiation of any litigation is a very serious matter, and we anticipate that all rights holders would give any such initiative serious consideration before proceeding.
Australian Screen Association
The Australian Screen Association is still considering our options and are unable to comment at this time.
APRA AMCOS, representing the livelihoods of 87,000 Australian songwriter and composer members, did make a submission to the Senate inquiry into the Copyright Amendment (Online Infringement) Bill 2015, where we argued that our members require additional legal ammunition in the fight against overseas pirate websites.
We therefore warmly welcomed the recent introduction of the new Section 115A into the Copyright Act.
In the short five weeks since Section 115A came into effect, we have been communicating extensively with our members regarding the new remedy and what it means for them. While APRA AMCOS has not yet brought an action under the new legislation, we do see the additional remedy against offshore websites as playing an important role in our efforts to reduce online piracy in the near future. As you will appreciate, Federal Court Litigation is a serious matter and the compilation of detailed evidence to meet the standard of proof the Court requires to grant an injunction takes time.
In time, we believe the new legislation will give creative industries a means to fight back, it will assist in changing the behaviour of Australian consumers and, most importantly, it will send a powerful, practical and symbolic message of support to the songwriters, music publishers, labels, licensed online music services and bricks-and-mortar music stores that make music available legitimately to consumers in this country.
All future responses will be added as they come through
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