Piracy reflects market failure: Husic


An expansion of Australia’s piracy site-block laws is “a form of regulatory hallucinogen”, Labor MP Ed Husic has said, adding that the voice of the consumer needs to be heard and rights holders should be less “resistant” to digitisation and reforming their systems.

“The big challenge is the freeing-up of copyright to ensure that innovation can spread more widely and to face up to big rights holders and the types of hysterical arguments we get in this space,” Husic said.

“These rights holders think that by constantly using legal mechanisms through this place and elsewhere, piracy will disappear. The reality is that piracy is a reflection of a market failure.”

Husic also suggested that political donations from rights holders such as Roadshow might sway votes on the legislation.

“As lawmakers, just because we might get a selfie with Richard Roxburgh — I love Rake as much as anyone else — or a political party gets a donation from a rights holder, does not mean that we should stop looking at how to make the types of reforms that balance the needs of creatives and the needs of producers versus the needs of consumers,” he said.

Annual returns for 2016-17, released by the Australian Electoral Commission (AEC) earlier this year, showed piracy site-block fan Roadshow donated AU$50,000 to the Liberal party, down from AU$357,000 last year, and was down from AU$279,200 to zip donated to the Australian Labor Party, however.

In spite of Husic’s comments in Parliament on Wednesday, the Bill has received bipartisan support.

Minister for Families and Social Services Paul Fletcher’s second reading speech for the Bill had said a review earlier this year of the laws found them to be “operating effectively”, but that search engines are enabling users to discover alternative pathways to blocked websites.

The review also found that online piracy types have also become broader, according to Fletcher, such as the use of “sophisticated online locations such as ‘cyberlockers’ that allow mass file sharing”.

“Third, new pathways to the blocked sites appear after the initial blocking, and these new pathways can’t be blocked because they are not part of the original court order,” Fletcher added, saying it is also difficult and expensive to prove whether an online location is located overseas.

“The Bill directly addresses these concerns.

“The Bill will make clear that the Federal Court has the power to issue responsive and adaptive injunctions, without the need for the copyright owner to go back to the court.”

The Australian government had last week introduced the new legislation, expanding it from carriage service providers to online search engine providers.

The Copyright Amendment (Online Infringement) Bill 2018 [PDF] “strengthens the existing, successful website-blocking scheme introduced by the government in 2015 by allowing more pirate websites to be targeted and making it harder for pirates to circumvent blocking measures”, according to the government.

Under s115A(2), rights holders can now gain injunctions requiring online search engine providers to “not provide search results that include domain names, URLs, and IP addresses that provide access to the online location and that are specified in the injunction” both before and after the injunction is made, meaning it would more easily cover mirror sites.

According to the explanatory memorandum [PDF], the Bill also expands the definition from “primary purpose” to also include websites that have the “primary effect of infringing or facilitating the infringement of copyright”.

Under the Bill, the presumption would be that the online location is outside Australia unless proven otherwise, also reducing the evidentiary burden on copyright owners.

The minister is also able to declare certain online search engine providers or classes of these to be exempt from the scheme.

The new Bill comes despite the existing law’s successful track record in blocking hundreds of torrenting and streaming websites in an increasingly speedy way, as well as its recent expansion to smart TV boxes and sites providing subtitle files.

The original Copyright Amendment (Online Infringement) Act passed both houses of Parliament in mid-2015.

Under the initial ruling, rights holders are to pay a AU$50 fee per domain they want to block, with the websites to be blocked within 15 business days.

The new Bill also comes in spite of research from the Department of Communications in August showing that for the third year in a row, online copyright infringement rates have dropped off across TV series, movies, and music, with the finding that consumers are increasingly paying for digital content.

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