The good news on Australia’s site blocking experience – creative rights better protected and free speech upheld. The bad news? None
by PETER CARSTAIRS
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.
But both New Zealand and Australia are commonly identified as countries with high levels of online piracy. Incredibly, 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. Similarly, in New Zealand, in July of this year alone, New Zealanders visited pirate sites a whopping 23 million times.[1]
For all the internet’s wonders and the freedom to access information, 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.[2]
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 requiring ISPs and search engines (without any finding of liability against 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.
In New Zealand, however, significant concerns have been raised in relation to site-bocking including uneasiness that it would amount to a form of filtering, as well as a restriction on free speech (and the freedom to access information) and, further, for such a regime to be considered, there would need to be compelling evidence that it can shift behaviours from infringing to purchasing. Interestingly, similar types of criticisms were levelled at the Australia scheme when it was proposed i.e. that the regime 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 each case where blocking orders have been made) and concludes that the criticisms of the regime were unfounded. In fact, 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, the Court has taken into account a number of discretionary factors (which are set out in section 115A of the Australian Copyright Act (Cth) 1968). These discretionary factors, which play an important role in providing safeguards to ‘over-blocking’ and include, for example:
(i) the impact of any person likely to be affected by the orders,
(ii) whether the blocking orders are in the ‘public interest’, and
(iii) whether the blocking orders are ‘proportionate’ in the circumstances.
Importantly, the Australian cases also make clear that one’s right to freedom of expression online simply does not extend to infringing another’s copyright.[3] The question of site-blocking amounting to ‘filtering’ has been less of an issue in Australia. Whilst the Australian site-blocking regime contemplates requiring an ISP to disable access to certain websites or ‘online locations’, it doesn’t contemplate requiring an ISP to filter or monitor its network.
The paper concludes that the regime has also been effective in shifting behaviours to help reduce online piracy and, given its success, 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.[4]
Whilst concerns about site-blocking orders overreaching are entirely reasonable, the Australian experience should serve as a valuable comparison for New Zealand when it comes to considering the benefits of site-blocking. Site blocking alone is not a ‘silver bullet’ to end online piracy. But, if the Australian experience is anything to go by, there is strong and cogent evidence that our rights to freedom of expression and access to information have not been curtailed, and are unlikely to be and, additionally, site-blocking is an effective tool in reducing online piracy.
About the author: Peter Carstairs
Peter Carstairs 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.
The Inevitable Actors: An Analysis of Australia’s Recent Anti-piracy Website Blocking Laws, Their Balancing of Rights and Overall Effectiveness is published in the latest edition of the Australian Intellectual Property Journal (AIPJ).
An extract of the introduction can be found on our research page.
The full text is available (to subscribers) via the AIPJ website.
This article was first published by Thomson Reuters in the Australian Intellectual Property Journal and should be cited as Peter Carstairs, The Inevitable Actors: An Analysis of Australia’s Recent Anti-piracy Website Blocking Laws, Their Balancing of Rights and Overall Effectiveness, 5 August 2021, V4, 31 AIPJ 280, Start page: 280
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[1] Sourced from SimilarWeb
[2] 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.
[3] Roadshow Films Pty Ltd v Telstra Corp Ltd [2020] FCA 1468 paragraphs [15] and [16].
[4] These services sit between a user and an audio-visual work and, for some sites, make the 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.
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